In the
United States Court of Appeals
For the Seventh Circuit

No. 99-3377

Shirley A. Lang, et al.,

Plaintiffs-Appellants,

v.

Kohl’s Food Stores, Inc., et al.,

Defendants-Appellees.



Appeal from the United States District Court
for the Western District of Wisconsin.
No. 98-C-351-C--Barbara B. Crabb, Judge.


Argued April 7, 2000--Decided June 22, 2000



  Before Bauer, Easterbrook, and Rovner,
Circuit Judges.

  Easterbrook, Circuit Judge. Kohl’s Food
Stores, a grocery chain in Wisconsin,
operates under collective bargaining
agreements that establish wage
classifications. Jobs in the bakery and
deli departments fall into one
classification, jobs in the produce
department another. Two facts give rise
to this litigation: pay in the produce
department is higher, and workers are not
distributed uniformly by sex. Most bakery
and deli workers are women, while most
produce workers are men. Plaintiffs, a
class of women who work in the deli and
bakery departments, contend that the
difference violates both the Equal Pay
Act, 29 U.S.C. sec.206(d), and Title VII
of the Civil Rights Act of 1964. Kohl’s
replies that plaintiffs are short-
sighted: employees in the produce
department are included within a pay
category called "regular clerks," most of
whom are female. That most regular clerks
in the produce department are men does
not undercut the fact that most regular
clerks store-wide are women, Kohl’s
insists. The employer adds that women who
want to be regular clerks in or out of
the produce department do not face any
discrimination in hiring or transfer.
None of the class representatives applied
for transfer to the produce department or
another regular-clerk position; instead
they want higher pay for their existing
work. The ratio of wages between
"department clerks" (the jobs plaintiffs
occupy) and "regular clerks," Kohl’s
insists, is a subject for collective
bargaining rather than for litigation.

  After allowing the parties to conduct
extensive discovery, the district court
granted summary judgment for Kohl’s on
the Title VII claim. The judge
exhaustively analyzed the duties of
bakery, deli, and produce workers and
concluded that plaintiffs could not
demonstrate that Kohl’s explanation for
placing produce positions in the "regular
clerk" classification was a pretext for
sex discrimination. (The class includes
supervisors and argues that bakery and
deli managers do the same work as produce
managers. Because the supervisors’
arguments track those of the clerks, we
use "clerks" as a generic term to
simplify exposition.) Kohl’s insisted
that produce workers exercise greater
discretion in displaying and culling
produce and that produce jobs also are
physically harder than bakery or deli
jobs. The district judge concluded:
"Plaintiffs have produced no persuasive
evidence suggesting that defendants did
not honestly believe this justification
or that it is a cover for
discrimination." Honest belief is not
enough under the Equal Pay Act, however,
because that statute (unlike Title VII)
does not require intent to discriminate.
Section 206(d)(1) provides:

No employer . . . 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[.]
The district judge concluded that two
questions under this statute could be
resolved only by trial: whether the
positions in question are "jobs the
performance of which requires equal
skill, effort, and responsibility, and
which are performed under similar working
conditions" and, if so, whether the pay
differential nonetheless is "based on any
other factor other than sex". A trial
culminated in a special verdict that
answered the equal-work question in the
negative; the jury then did not address
the "factor other than sex" defense.

  A substantial portion of plaintiffs’
appellate brief is devoted to contending
that the district judge should not have
granted summary judgment on the Title VII
theory. Yet it is hard to see how this
can matter, given the jury’s verdict on
the Equal Pay Act theory. If (as the jury
determined) the bakery, deli, and produce
jobs are not substantially equal, then
plaintiffs can’t show sex discrimination.
Title VII does not require equal wages
for comparable work, see American Nurses’
Association v. Illinois, 

(7th Cir. 1986), or even for identical
work. Identical jobs with different wages
do not violate Title VII, provided that
all employees may freely select which job
to perform. Plaintiffs’ Title VII claim
thus is untenable--no matter the validity
of the jury’s special verdict, which we
address below--unless Kohl’s
discriminated when hiring for the
different classifications.

  Plaintiffs make much of evidence that
until the late 1960s Kohl’s not only
discouraged women from applying for
certain positions but also had sex-
segregated wage classifications. This
practice is long gone, and no vestige of
the discrimination survives. Wage
schedules were merged 31 years ago, and,
unlike the situation in Bazemore v.
Friday, 

(1986), women hired
during the discriminatory period today
receive the same wages as men hired at
the same time. What remains is the
possibility that Kohl’s steered
applicants by sex or selectively offered
them transfer opportunities. Loyd v.
Phillips Brothers, Inc., 

,
524-25 (7th Cir. 1994). Neither the
plaintiffs’ charge of discrimination
filed with the Equal Employment
Opportunity Commission nor their
arguments to the district court contended
that Kohl’s today steers women to bakery
and deli jobs, or did so at any time
within the period of limitations.
Plaintiffs disavow a steering claim but
contend that Kohl’s history is
informative on the wage-discrimination
claim. The district judge did not see
how; neither do we.

  Claims under the Equal Pay Act differ
from comparable-worth arguments because
proof that the two jobs are of the same
(or comparable) value to the employer or
society as a whole, or depend on similar
effort or education, gets the plaintiff
nowhere. To succeed under the Equal Pay
Act the plaintiff must establish that the
positions entail substantially equal
tasks, performed under similar
conditions. (The Act just says "equal,"
but it is common ground that "equal" does
not mean "identical"; otherwise the
employer could defeat an Equal Pay Act
suit by adding an inconsequential and
pointless chore to one of the jobs.
Opinions commonly use the formula
"substantially equal" to express the idea
that trivial differences do not matter.
See Fallon v. Illinois, 

,
1208 (7th Cir. 1989); Epstein v.
Secretary of the Treasury, 

,
277 (7th Cir. 1984). We follow that
convention.) Kohl’s provided the jury
with plenty of evidence that tasks in the
produce department differ substantially
from those performed by bakery and deli
workers. Produce workers do more heavy
lifting and must exercise judgment about
(for example) which fruit is ripe, which
should be marked down, and how the
produce should be displayed to maximize
sales. Bakery and deli workers, by
contrast, stock displays according to
more mechanical specifications and use
printed expiration dates rather than
judgment to determine when inventory
should be rotated or removed. Although a
rational jury might have disbelieved this
evidence or concluded that the
differences are too slight to matter, and
thus returned a verdict in plaintiffs’
favor, a verdict for Kohl’s is
invulnerable unless spoiled by trial
error.

  Plaintiffs contend that the exclusion of
their expert witness is such an error.
Howard Risher, a self-employed consultant
with a Ph.D. in labor relations and
economics, who teaches an undergraduate
course on human resources as an adjunct
professor at the University of
Pennsylvania, prepared a report reaching
conclusions favorable to plaintiffs.
Stripped of self-congratulatory dross,
this report is three pages long and
consists of a list of clerks’ duties and
an unreasoned assertion that all three
departments’ positions are "virtually
identical in terms of their basic
function and are substantially equal in
terms of skill, effort, responsibility
and working conditions." The only support
for this conclusion, however, is the
list, with entries such as "[p]reparing
products for display" and "[m]aintaining
equipment". Risher did not analyze what
the clerks do to achieve these
objectives, and the district court
concluded that a list plus a bald
assertion would not assist the trier of
fact. Fed. R. Evid. 702. Risher’s
deposition was as skeletal as his report;
asked how employees at Kohl’s carry out
their duties, Risher replied only with
variants on "I couldn’t tell you" and "I
have no idea". Apparently Risher thinks
that job descriptions trump actual tasks,
a sorry misunderstanding of the Equal Pay
Act. See Soto v. Adams Elevator Equipment
Co., 

, 548 (7th Cir. 1991);

. The district
judge’s decision to prevent Risher from
testifying, far from being an abuse of
discretion, see General Electric Co. v.
Joiner, 

(1997), was
absolutely correct. Many times we have
emphasized that experts’ work is
admissible only to the extent it is
reasoned, uses the methods of the
discipline, and is founded on data.
Talking off the cuff--deploying neither
data nor analysis--is not an acceptable
methodology. See, e.g., McMahon v. Bunn-
O-Matic Corp., 

, 657-58 (7th
Cir. 1998); Mid-State Fertilizer Co. v.
Exchange National Bank, 

,
1339 (7th Cir. 1989).

  Risher also prepared a supplemental
report, based on his discussion with
eight bakery or deli workers in a "focus
group." This report did little more than
parrot these women’s belief that bakery
and deli duties require as much skill as
produce duties. Relaying the plaintiffs’
likely testimony is not an example of
expertise. Huey v. United Parcel Service,
Inc., 

, 1086-87 (7th Cir.
1999). The report’s final paragraph,
however, says that Risher "used the
Willis job evaluation system to confirm
that the jobs would be evaluated the same
in each department" and concluded that
"the jobs would be evaluated exactly the
same". Risher does not explain how the
"Willis job evaluation system" works (or
cite published literature providing that
background), what data he used as inputs,
or what outputs were obtained. Charts
attached to the report are unintelligible
without explanation, and Risher provided
none. Readers must take everything on
faith, and that alone would be good
reason to exclude Risher’s conclusion.
See Kumho Tire Co. v. Carmichael, 

(1999). The few references to
the Willis system in the legal literature
suggest that it is designed to identify
comparable worth, rather than
substantially equal tasks. See AFSCME v.
Washington, 

, 1403, 1406,
1408 (9th Cir. 1985) (Kennedy, J.)
(holding, on this ground, that Willis
evaluations are unavailing). All
plaintiffs do in response is assert that
the Willis system is "a recognized job
evaluation system" that is "widely used
by businesses"--which does nothing to
fill in the blanks of Risher’s report or
demonstrate that the Willis inquiry was
relevant to this litigation.

  Plaintiffs challenge a second
evidentiary decision, which the parties
call the "outlier ruling." Kohl’s
operates stores throughout Wisconsin.
Some are much larger than others, and
size affects not only the number of
employees in each department but also the
tasks to be done. Plaintiffs sought to
compare the busiest bakery and deli jobs
with the lightest produce jobs; Kohl’s
naturally would have preferred the
converse. But the judge instructed both
sides to compare the tasks of median jobs
rather than the outliers at the largest
and smallest stores. Plaintiffs contend
that this ruling prevented them from
showing that some bakery and deli jobs
are substantially equal (in lifting,
responsibility, and so on) to some
produce jobs, indeed are more taxing than
some produce jobs. As plaintiffs see
things, the Equal Pay Act requires a
person-by-person comparison rather than a
categorical one.

  To the extent plaintiffs rely on the
proposition that employers cannot make up
arbitrary categories and insist that
these be the basis of comparison, they
get no quarrel from us (or from the
district judge). See Thompson v. Sawyer,

, 274-75 (D.C. Cir. 1982).
But Kohl’s did not make up the
"department clerk" and "regular clerk"
categories for this litigation, nor did
it unilaterally decide to use the same
wage scale throughout the state; the
classifications and wages are the result
of collective bargaining. Labor
agreements frequently apply to all of an
employer’s sites, and these agreements
are "factor[s] other than sex" that
explain why the pay is identical at large
and small stores even though the tasks
differ. If all plaintiffs have to go on
is the difference across stores, then
they have nothing, for this variation in
the ratio between pay and the difficulty
of employees’ tasks is so obviously
unrelated to sex that Kohl’s would have
been entitled to summary judgment under
sec.206(d)(1)(iv). To get anywhere,
plaintiffs had to make a categorical
comparison between "department clerk"
positions and "regular clerk" positions.
Class treatment is appropriate only if
there are common issues of fact--that is,
only if it is possible to compare all
"department clerk" positions in bakery
and deli departments with all "regular
clerk" positions in produce departments.
The district court’s outlier ruling
ensured that the premise of class
certification (granted at plaintiffs’
behest) would not be subverted. It was
not an abuse of discretion.

  Two challenges to the jury instructions
require only brief mention.

  First, the instructions told the jury
that it must determine whether the
positions are "substantially the same"
rather than "substantially equal."
Plaintiffs express concern that the jury
would treat "same" as equivalent to
"identical," which these positions
concededly were not. But using the word
"equal" could lead to the same (an
equal?) misunderstanding. Modifying
either word with "substantially"
overcomes the problem. The phrases
"substantially the same" and
"substantially equal" are substantially
identical. The special interrogatory
forms told the jury to determine whether
the positions were "substantially the
same," and the district judge sensibly
tracked that language in the
instructions; otherwise the jury could
have been confused by a difference
between the instructions and the verdict
forms.

  Second, plaintiffs contend that the
judge erred by telling the jury that
documentary evidence such as position
descriptions and training manuals--
evidence that plaintiffs contend shows
that bakery, deli, and produce positions
have the same tasks--"could not be
considered." An instruction saying this
would indeed be erroneous, for an
employer’s manuals and descriptions are
relevant to the question what the
positions actually entail. But plaintiffs
do not identify the supposedly erroneous
instruction, and we could not find one
that tells the jury not to "consider"
paper evidence. What the judge actually
told the jury is that a decision should
not be "based upon job titles or job
descriptions" but instead depends on
"actual job duties and performance
requirements." That instruction was
absolutely correct. Training manuals and
the like were relevant only to the extent
they accurately described the actual job
duties.

  Last but not least is plaintiffs’
contention that the district judge erred
in informing the jury that the eeoc had
found in Kohl’s favor on plaintiffs’
charge of discrimination under the Equal
Pay Act. Before trial the district judge
granted a motion in limine barring Kohl’s
from informing the jury about the eeoc’s
decision, but the judge changed her mind
after plaintiffs’ counsel told the jury
that Kohl’s agreed "under pressure of
this lawsuit" to reduce the pay
differential among the departments.
Kohl’s replied that the "pressure" came
from its unions in collective bargaining,
not from the suit; to add oomph to this
assertion Kohl’s wanted to inform the
jury that the eeoc took a dim view of
plaintiffs’ chances. If even the eeoc did
not support plaintiffs, Kohl’s sought to
argue, then the "pressure of this
lawsuit" could not have made a
difference. This led the district judge
to inform the jury about the eeoc’s
conclusion, in this language:
At the time of the 1998 collective
bargaining negotiations Kohl’s had a
determination from the Equal Employment
Opportunity Commission that it had not
discriminated against bakery and deli
managers and clerks on the basis of their
pay. At plaintiffs’ request that the
determination by the Equal Employment
Opportunity Commission be reconsidered,
the eeoc rescinded its determination.
Before any redetermination had issued,
plaintiffs’ attorney decided to proceed
with this lawsuit and therefore no
determination was ever issued thereafter
by the Equal Employment Opportunity
Commission.

By asserting that the "pressure of this
lawsuit" led to a change, plaintiffs’
counsel implied that the suit had merit--
and that Kohl’s knew that it had merit.
Kohl’s was entitled to counteract this
implication, the district judge thought,
by showing that what Kohl’s knew implied
that it would prevail on the merits.

  Many decisions by the eeoc are
superficial, little more than precursors
to right-to-sue letters. But this one was
more thorough. Here is the Commission’s
own description:

Our equal payment investigation
considered whether or not the actual job
duties of the deli and bakery manager
positions and the deli and bakery clerk
positions were substantially equal with
respect to skill, effort, responsibility,
and working conditions as those of the
produce manager and produce clerk
positions. To that end, detailed equal
pay interviews were conducted with
various incumbents of the produce manager
and produce clerk positions. These
interviews reflected that the produce
jobs were dirtier, required more physical
lifting of greater weight, more items
with greater frequency than the deli and
bakery jobs. Moreover, the produce areas
are significantly larger than the deli
and bakery areas in terms of physical
square footage. There are far more items
in produce than in deli and bakery and
produce accounts for a greater percentage
of store sales, i.e., higher sales
volume. Produce employees are frequently
called upon to help out in other areas of
the store stocking the dairy case,
retrieving the carts, et cetera. As a
result, our investigation concluded that
the jobs in question did not meet the
required equal pay test and that they are
not substantially equal with respect to
effort, responsibility, skill or working
conditions.

It is understandable that plaintiffs
wanted to keep this damning passage from
the jury’s eyes, and they succeeded. The
jury never learned the reasoning behind
the eeoc’s decision. Why plaintiffs’
counsel, having secured a ruling
excluding even a mention of the eeoc’s
bottom line, then opened the door is a
mystery. Still, plaintiffs say, the jury
should not have been told about the eeoc’s
conclusion because, by the time Kohl’s
agreed to reduce the pay differential to
5% per hour, the eeoc had rescinded its
conclusion, so that the report did not
counteract the inference for which
counsel argued.

  After receiving the eeoc’s report (and
the accompanying right-to-sue letter) in
September 1997, plaintiffs asked the eeoc
to reconsider. In December 1997 the eeoc’s
District Director withdrew both the
conclusion and the right-to-sue letter
pending further review. See 29 C.F.R.
sec.1601.19(b). Before the eeoc could do
any further investigation, plaintiffs
asked for a new right-to-sue letter,
which the eeoc was obliged to issue
forthwith. 29 C.F.R. sec.1601.28. Once it
sent the right-to-sue letter, the eeoc
called off its investigation and neither
reissued the original report nor prepared
a new one. The upshot was that, when
plaintiffs filed their suit, there was no
outstanding adverse decision by the eeoc.
When she told the jury about the eeoc’s
conclusion, the district judge was under
the impression that the negotiations to
which plaintiffs’ counsel referred took
place before the District Director’s
order in December 1997. On learning that
this was not so, the judge did not
instruct the jurors to disregard the
report (a direction that would have been
futile in any event, sort of like telling
the jurors that for the remainder of the
trial none of them was allowed to say the
word "rhinoceros" to himself).
  Was there a significant chance that the
jury would misunderstand the significance
of the eeoc’s decision, and the purpose
for which it had been used--a chance so
large that it requires reversal even
under the deferential standard used to
review a district judge’s application of
Fed. R. Evid. 403? We think not.
Confusion over timing is regrettable, but
the judge can’t be blamed for the error
in the opening passage of the instruction
("At the time of the 1998 collective
bargaining negotiations Kohl’s had a
determination" . . .). That language had
been drafted by the parties; the judge
used it because the parties agreed on it.
Plaintiffs deny that they "stipulated" to
the language, but no matter; they did not
object to it, and that is that. Fed. R.
Civ. P. 51.

 Because plaintiffs sought to persuade
the jury that Kohl’s recognized its
culpability, Kohl’s was entitled to rebut
this contention using the best available
evidence: a decision by the eeoc that the
positions were not substantially equal.
See Paolitto v. John Brown E.&C., Inc.,

, 65-66 (2d Cir. 1998).
Decisions by public bodies do not vanish
into thin air or become un-documents when
parties ask for reconsideration or settle
their differences. See U.S. Bancorp
Mortgage Co. v. Bonner Mall Partnership,

(1994); In re Memorial
Hospital of Iowa County, Inc., 

(7th Cir. 1988). When negotiating
with the unions, Kohl’s knew the eeoc’s
view, which had been withdrawn as a
result of plaintiffs’ strategy but had
not been disclaimed as erroneous. The
1998 negotiations occurred against a
background that included the eeoc’s
support of Kohl’s position, and this was
relevant to the strength of the inference
that Kohl’s and the unions acted under
the "pressure of this lawsuit" as
plaintiffs asserted.

  Doubtless there was a risk that the jury
would overestimate the significance of
the eeoc’s ruling; this is why such
conclusions generally are not admitted
(on behalf of either side) in jury
trials. See Lathem v. Department of
Children and Youth Services, 

, 791 (11th Cir. 1999). Plaintiffs
note that the jury asked a question about
the report during deliberations, implying
that the eeoc’s view assumed unusual
significance. By opening the door to
disclosure, however, plaintiffs took that
risk; they could not argue as they did
and then defang the best response. See
United States v. McAnderson, 

, 946 (7th Cir. 1990). Nor can they
avoid the consequence of their opening
statement by contending on appeal (as
they do) that "[w]hy Kohl’s narrowed the
gap in late 1998 is entirely peripheral"
(emphasis in original). That may be, but
it was plaintiffs who injected this
subject into the case and entitled Kohl’s
to supply an answer. Plaintiffs did not
argue to the district judge that the
scope of the answer was too prejudicial
and never suggested any possible response
that was less prejudicial. The district
judge protected plaintiffs’ substantial
rights by excluding the eeoc’s actual
language and reminding the jury that the
conclusion had been rescinded. In
response to the jury’s question, the
judge reread the instruction and added
that the only issue properly under
consideration was "whether the jobs are
equal" rather than why Kohl’s and the
union changed the pay scales in 1998. The
evidence and the instructions as a whole
ensured that the jury focused on, and
answered, the right questions. Plaintiffs
had a fair trial.

Affirmed