JOHN R. BROWN, Chief Judge.
The Secretary of Labor brought these actions under one of the modern shields of women’s rights 1 — the Equal Pay Act of 1963, 29 U.S.C.A. § 206(d) (1).2 He was commissioned the champion of the female worker by the Act, which was enacted as an amendment to the Fair Labor Standards Act of 1938,3 and seeks to' recover for the female employees of these two banks 4 the difference between what they were paid and what male employees, allegedly doing equal work, received. And, in addition, he seeks to [650] enjoin the banks from future discrimination.
It is the Secretary’s contention that these relatively small banks paid women bookkeepers and tellers substantially less than was paid to male employees performing the same work. He relies heavily on the actual pay differentials at both the First Victoria National Bank 5 and the American Bank of [652] Commerce of Victoria6 to demonstrate this. The banks, however, argued that there has been no violation of the Equal Pay Act. First, they contended the in[653] equality in pay was due to differences in the work performed. Second, they claimed that the differential was, to quote the statute, based on a “factor other than sex”. (See note 2, swpm.) This factor was “a bona fide training program” — a “factor other than sex” approved by the Secretary’s Interpretative Bulletin. 29 C.F.R. § 800.148.7 The Secretary makes a triple response by [654] attempting to show that (1) the jobs performed by the employees were the same, (2) the alleged training program was not a “bona fide training program” within the meaning of the Department’s Interpretative Bulletin nor (3) was it a “factor other than sex” within the meaning of the statutory exception.8
The District Court found it unnecessary to pass on the similarity of the various jobs performed by the employees involved here since it found that the pay differential was based upon a “bona fide training program.” 8 Since this approach impliedly assumed that there was in fact unequal pay for equal work we need consider only whether the District Court was correct in its construction of the statute and of the Interpretative Bulletin. Since we believe that the training program found to exist and to be the basis of the unequal pay was neither a “bona fide training program” within the meaning of the Bulletin nor within the statutory exemption,9
10 we must reverse and remand the cases for the District Court to compare the jobs performed by the employees involved here and decide whether in fact under the appropriate burden of proof there was unequal pay for equal work.
The training programs that the District Court found to exist and to be the justification for the unequal pay were informal, unwritten,11 and, if not imaginary, consisted of little more than the recognition of the ability of employees to work their way up the ranks. The training program was supposed to provide rotation for the “trainee” through the various departments of the bank so the employee would more fully compre[655] hend the banks’ operations. Such rotation of the male “trainees” was, however, not distinguishable from the normal course of employment for the female employees.12 The rotation of the “trainee” has apparently been unpredictable, sporadic, and unplanned. The time spent in each department varied widely and was in fact based not upon any concept of training but upon the banks’ personnel needs.13
Moreover, there was no definite understanding or agreement between the banks and their male employees concerning a training program. Mr. Sheffield, Vice President of First Victoria in charge of personnel, testified that when he hired an employee he did not know if that employee would be “trained” to be an officer.14 Yet, the male employees were started at substantially higher salaries than female employees performing the same task. For example, Gary Prai started work for First Victoria in 1961 as a paying and receiving teller at $300.00 a month (Table A, Item 1, col. a), while LaRose Halsey, who had worked at the position since 1946 (Table A, Item 2, col. a), received only $290.00 per month.15
Thus it is apparent that the training programs that the District Court found to exist and be the motivation for the discrimination were not specific and their metes and bounds were at best poorly surveyed. As structured and operated it was little more than a post-event justification for disparate pay to men and women from the commencement of employment up through advancement. The training was essentially the acquiring [656] of skills, and experience and knowledge of the business through continued performance of regular tasks.16 In this sense every job in every type of business would be training, and nothing would be left for the operation of the Interpretative Bulletin Training program. This was not the Secretary’s intention. In addition, the imprecision, in and of itself, of the Banks’ training program is not in keeping with the Secretary’s Interpretative Bulletin on training programs. (See note 7, swpra).
Moreover, such imprecise programs are outside the scope of the broad statutory exception — “a factor other than sex” — (See 29 U.S.C.A. § 206(d) (1) (iv)) because they are not in harmony with the Congressional purpose: The elimination of those subjective assumptions and traditional stereotyped misconceptions regarding the value of women’s work.17 These programs are inconsistent since in actual operation the work and role of the male employees— “trainees” cannot be distinguished from the female workers who do the same jobs and who are likewise learning and growing in the business but without the title of trainee.
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JOHN R. BROWN, Chief Judge.
The Secretary of Labor brought these actions under one of the modern shields of women’s rights 1 — the Equal Pay Act of 1963, 29 U.S.C.A. § 206(d) (1).2 He was commissioned the champion of the female worker by the Act, which was enacted as an amendment to the Fair Labor Standards Act of 1938,3 and seeks to' recover for the female employees of these two banks 4 the difference between what they were paid and what male employees, allegedly doing equal work, received. And, in addition, he seeks to [650] enjoin the banks from future discrimination.
It is the Secretary’s contention that these relatively small banks paid women bookkeepers and tellers substantially less than was paid to male employees performing the same work. He relies heavily on the actual pay differentials at both the First Victoria National Bank 5 and the American Bank of [652] Commerce of Victoria6 to demonstrate this. The banks, however, argued that there has been no violation of the Equal Pay Act. First, they contended the in[653] equality in pay was due to differences in the work performed. Second, they claimed that the differential was, to quote the statute, based on a “factor other than sex”. (See note 2, swpm.) This factor was “a bona fide training program” — a “factor other than sex” approved by the Secretary’s Interpretative Bulletin. 29 C.F.R. § 800.148.7 The Secretary makes a triple response by [654] attempting to show that (1) the jobs performed by the employees were the same, (2) the alleged training program was not a “bona fide training program” within the meaning of the Department’s Interpretative Bulletin nor (3) was it a “factor other than sex” within the meaning of the statutory exception.8
The District Court found it unnecessary to pass on the similarity of the various jobs performed by the employees involved here since it found that the pay differential was based upon a “bona fide training program.” 8 Since this approach impliedly assumed that there was in fact unequal pay for equal work we need consider only whether the District Court was correct in its construction of the statute and of the Interpretative Bulletin. Since we believe that the training program found to exist and to be the basis of the unequal pay was neither a “bona fide training program” within the meaning of the Bulletin nor within the statutory exemption,9
10 we must reverse and remand the cases for the District Court to compare the jobs performed by the employees involved here and decide whether in fact under the appropriate burden of proof there was unequal pay for equal work.
The training programs that the District Court found to exist and to be the justification for the unequal pay were informal, unwritten,11 and, if not imaginary, consisted of little more than the recognition of the ability of employees to work their way up the ranks. The training program was supposed to provide rotation for the “trainee” through the various departments of the bank so the employee would more fully compre[655] hend the banks’ operations. Such rotation of the male “trainees” was, however, not distinguishable from the normal course of employment for the female employees.12 The rotation of the “trainee” has apparently been unpredictable, sporadic, and unplanned. The time spent in each department varied widely and was in fact based not upon any concept of training but upon the banks’ personnel needs.13
Moreover, there was no definite understanding or agreement between the banks and their male employees concerning a training program. Mr. Sheffield, Vice President of First Victoria in charge of personnel, testified that when he hired an employee he did not know if that employee would be “trained” to be an officer.14 Yet, the male employees were started at substantially higher salaries than female employees performing the same task. For example, Gary Prai started work for First Victoria in 1961 as a paying and receiving teller at $300.00 a month (Table A, Item 1, col. a), while LaRose Halsey, who had worked at the position since 1946 (Table A, Item 2, col. a), received only $290.00 per month.15
Thus it is apparent that the training programs that the District Court found to exist and be the motivation for the discrimination were not specific and their metes and bounds were at best poorly surveyed. As structured and operated it was little more than a post-event justification for disparate pay to men and women from the commencement of employment up through advancement. The training was essentially the acquiring [656] of skills, and experience and knowledge of the business through continued performance of regular tasks.16 In this sense every job in every type of business would be training, and nothing would be left for the operation of the Interpretative Bulletin Training program. This was not the Secretary’s intention. In addition, the imprecision, in and of itself, of the Banks’ training program is not in keeping with the Secretary’s Interpretative Bulletin on training programs. (See note 7, swpra).
Moreover, such imprecise programs are outside the scope of the broad statutory exception — “a factor other than sex” — (See 29 U.S.C.A. § 206(d) (1) (iv)) because they are not in harmony with the Congressional purpose: The elimination of those subjective assumptions and traditional stereotyped misconceptions regarding the value of women’s work.17 These programs are inconsistent since in actual operation the work and role of the male employees— “trainees” cannot be distinguished from the female workers who do the same jobs and who are likewise learning and growing in the business but without the title of trainee.
The Congressional purpose is clear whether divined by traditional doctrines of statutory construction or, more plausibly, the legislative history with respect to the statutory exception. This legislative intent is expressed by the report of the House committee that favorably reported the bill to the floor: [657] serve as a valid defense to a charge of discrimination.
[656] “This language recognizes that there are many factors which may be used to measure the relationships between jobs and which establish a valid basis for a difference in pay. These factors will be found in a majority of the job classification systems. Thus, it is anticipated that a bona fide job classification program that does not discriminate on the basis of sex will
[657] Three specific exceptions and one broad general exception are also listed. It is the intent of this committee that any discrimination based upon any of these exceptions shall be exempted from the operation of this statute. As it is impossible to list each and every exception, the broad general exclusion has been also included. Thus, among other things, shift differentials, restrictions on or differences based on time of day worked, hours of work, lifting or moving heavy objects, differences based on experience, training, or ability would also be excluded. It also recognizes certain special circumstances, such as “red circle rates.” This term is borrowed from War Labor Board parlance and describes certain unusual, higher than normal wage rates which are maintained for many valid reasons. For instance, it is not uncommon for an employer who must reduce help in a skilled job to transfer employees to other less demanding jobs but to continue to pay them a premium rate in order to have them available when they are again needed for their former jobs.”
109 Cong.Rec. 9210.
Important as are the exceptions, to sustain these so-called training programs as a justification for disparate pay would mean that “the exception will swallow the rule.” Weeks v. Southern Bell Tel. & Tel. Co., 5 Cir., 1969, 408 F.2d 228, 235. And, this “rule” — equal pay for equal work — was not laid down simply out of concern about the injustice of discrimination,18 important as that was. It was also laid down out of concern about the economic and social consequences of disparate wages19 paid to a major portion of the nation’s labor force.20 Such wages not only depressed [658] the living standard of those who received them, they also depressed wages for all workers and particularly workers in certain industries.21
Nor is any such swallowing of the “rule” compelled or suggested by our recent construction of that other rank in the phalanx of legislation designed to protect the employment rights of women — equal job opportunity — conferred by Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e et seq.22 In Phillips v. Martin Marietta Corp.,23 we held that there was no discrimination based on sex when another criterion of employment, even one related as closely [659] to sex as motherhood, is coupled with sex. 411 F.2d at 3-4. Here, however, under the training program relied upon as the justification for unequal pay there was lacking “any factor other than sex”, since the work performed and the employment roles of the male and female employees were the same. Thus it was sex itself.
This is borne out also by the discriminatory manner in which these training programs were administered.24 Since the commencement of this proceeding both banks made female employees officers.25 Both banks thus obviously recognized that some of their women employees had the capacity and the drive to become officers. Both banks, nevertheless, included none of these women in the “training programs”. Thus the system starts with discrimination on sex with no showing yet that any exception would justify it. This will be true whether this is an Equal Pay Act problem or a Title VII26 problem and whether the differential justification is based on the exceptions in the Equal Pay Act, the business-justification exception of § 703(e) of Title VII, 42 U.S.C.A. § 2000e-2(e), or concepts akin to Phillips v. Martin Marietta Corp., supra.
These vague, almost illusory, training programs that were applied in a discriminatory manner may have been “a better reason” 27 than the maleness or femaleness of employees for the inequality in pay. But, they were not “factors other than sex” within the meaning of the Equal Pay Act.
Reversed and remanded.28