This case involves the interpretation of AS 18.80.220(a)(5), specifically the meaning of the phrase "work of comparable character." At a hearing following a complaint by a group of public health nurses, the Alaska State Commission for Human Rights (HRC) interpreted AS 18.80.220(a)(5) to require equal pay for jobs of comparable value to the employer. The superior court reversed the decision on appeal. We affirm in part and remand in part.
I. FACTUAL AND PROCEDURAL BACKGROUND
In 1978 and 1979, 11 public health nurses (PHNs) filed claims with the Alaska State Commission for Human Rights. The PHNs, allegedly all of whom are women, claim that they were paid less than physician's assistants (PAs), allegedly all of whom are men, in violation of AS 18.80.220(a)(5) (hereinafter (a)(5)), which provides:
The HRC appointed a hearing examiner to review the complaints. Based on the pre-enactment history of the statute, the hearing examiner determined that the phrase "comparable character" found in (a)(5) only required equal pay for equal work. The hearing examiner also determined that although the two positions were roughly comparable in terms of the skill and effort required, the PAs had more responsibility than non-practitioner PHNs and more onerous working conditions.
Following review of the record by independent counsel the HRC reversed the decision of the hearing examiner. The HRC ruled that the phrase "work of comparable character" should be interpreted as work of comparable value to the employer. The HRC also accepted the conclusion of the PHNs' expert that the PHN position was "at least comparable" to the PA position.
The superior court, sitting as an intermediate appellate tribunal, Alaska Appellate Rule 601, reversed the decision of the HRC. The superior court concluded that there was no evidence to support the HRC's decision that the Alaska legislature intended "comparable work" to mean something more than equal work. The court added that the PA and PHN positions were clearly not equal.
The HRC appeals. The HRC's points on appeal include the assertion that the superior court erred in holding that (a)(5) only allows comparisons between jobs which are substantially identical, rather than between similar but not identical jobs in which the required skills, responsibilities, effort and working conditions are comparable in character.
II. STANDARD OF REVIEW
The HRC urges this court to use the rational basis test in reviewing its interpretation of AS 18.80.220(a)(5). As support, the HRC points to Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896 (Alaska 1987). In Tesoro, we held that the rational basis test is to be used where the question at issue involves special agency expertise or the "determination of fundamental policies within the scope of the agency's statutory function." Id. at 903. The HRC claims that due to its expertise and its need to determine fundamental policies
The state urges us to adopt the independent judgment standard of review. It argues that interpreting (a)(5) does not require agency expertise or implicate the policy making ability of the HRC. The state also contends that the legislature's act of giving the superior court concurrent jurisdiction over claims brought under AS 18.80 demonstrates an intent to not vest the HRC with discretion to interpret the statute.
Assuming arguendo that the interpretation of (a)(5) requires agency expertise or involves fundamental policy making, the HRC's joint jurisdiction with the superior court requires this court to use the independent judgment standard of review. AS 22.10.020(i)
In its decision, the HRC stated that the phrase "comparable character" found in (a)(5) required equal pay for work of equivalent worth to the employer.
We find the history of (a)(5) instructive in interpreting the term "comparable character."
(Footnotes omitted). 2A N. Singer, Sutherland Stat. Const. § 48.04 (4th ed. 1984).
In 1949, the Commissioner of Labor wrote territorial Governor Gruening regarding upcoming labor legislation. The letter described a legislative proposal that would "[provide] that women shall be paid the same wage as men for the same work... ." That same month Governor Gruening addressed a joint session of the
1949 Senate Journal 63. Legislation "pertaining to equal pay for female employees" was introduced within a week of the governor's speech, id. at 103, and passed by both the Senate, id. at 268, and the House, 1949 House Journal 476, within a month. This legislation read:
Ch. 29, § 1, SLA 1949.
When Alaska became a state, the Act was codified at former AS 23.10.155. The only change made was the replacement of "this Territory" with "this state." Compare ch. 29, § 1, SLA 1949 with former AS 23.10.155. When the HRC was created in 1963, its establishing legislation incorporated former AS 23.10.155 by reference. In 1965 reference to AS 23.10.155 in the HRC's establishing legislation was deleted, but nearly identical language was reenacted at AS 18.80.220(a)(5).
The HRC stated that it did not consider this evidence conclusive as to the legislative intent behind the statute. First, the HRC noted that the governor's speech did not specify the legislation to which he was referring, and thus termed his remarks "general." Second, since no comments of legislators were cited, the HRC argued that it was difficult to determine with any accuracy the intent of the legislature.
The HRC argues that a clearer indication of the meaning of (a)(5) may be gleaned by looking to the Congressional debates over the wording of the Equal Pay Act, 29 U.S.C. § 206(d)(1) (1982) (EPA). From 1962-63, Congress debated the EPA. Part of the debate was over the terms "comparable" and "equal." Congress eventually chose to use the term "equal" due to concern over the broader meaning of the term "comparable." See, e.g., Gerlach v. Michigan Bell Tel. Co., 501 F.Supp. 1300, 1309 (E.D.Mich. 1980). The HRC claims that since AS 23.10.155 was recodified at AS 18.80.220(a)(5) following the EPA debates, the Alaska legislature must have known of, and approved of, the meanings attached to the terms by the United States Congress.
The HRC also asserts that the "comparable character" language in the second clause of (a)(5) must mean more than equal pay for equal work since that is the meaning of the first clause in (a)(5).
We disagree. The first clause of (a)(5) should be interpreted as prohibiting intentional discrimination in the payment of wages. The lack of any language regarding the equality of jobs in the first clause precludes interpreting it as an equal pay for equal work provision. Furthermore, the history of (a)(5) convinces us that the proper interpretation of the phrase "comparable character" is as an equal pay for
We remand the question of the substantial equality of the PA and PHN positions so that the HRC may re-examine its decision in light of our interpretation of (a)(5).
The decision of the superior court is AFFIRMED in part and REMANDED in part.