The impact of the Bennett Amendment on the comparable worth debate has been a point of contention. In 1989, Ellen Frankel Paul summarized the matter in Equity and Gender: The Comparable Worth Debate, by posing two questions: "Does the Bennett Amendment plug into Title VII all of the Equal Pay Act's standards, thus importing the "equal work" standard of the latter? Or does it merely inject the Equal Pay Act's four exceptions...?"[6] Paul noted that the question is pivotal to resolving the Comparable Worth Debate since if it is interpreted to incorporate the entirety of the Equal Pay Act's standards, it becomes impossible to prove a "comparable worth" suit by defining two different jobs in a scale of importance and determining by it how to judge equal pay.[7]
County of Washington v. Gunther
The Supreme Court of the United States first examined the question of the impact of the Bennett Amendment in the 1981 case County of Washington v. Gunther, 452 U.S. 161.[4] The case originated in 1974 in Oregon, when a group of four female county prison guards sued the County of Washington for unequal wages and alleged that their pay was less than that of male guards for no reason other than sexual discrimination. The district court disagreed by finding that male guards were responsible for overseeing more prisoners and also that female guards spent some of their time in clerical tasks. However, it also found as a matter of law that a sex-based wage discrimination claim cannot be brought under Title VII unless it satisfies the equal work standard of the Equal Pay Act of 1963.[8]
While not reviewing the first finding, the Ninth Circuit Court of Appeals held with respect to the latter that "claims for sex-based wage discrimination can also be brought under Title VII even though no member of the opposite sex holds an equal but higher paying job, provided that the challenged wage rate is not exempted under the Equal Pay Act's affirmative defenses as to wage differentials attributable to seniority, merit, quantity or quality of production, or any other factor other than sex."[8] It interpreted the intention of the amendment as incorporating "into Title VII only the affirmative defenses of the Equal Pay Act, not its prohibitory language requiring equal pay for equal work."[8]
By a narrow margin, the US Supreme Court concurred with that finding.[9] Justice Brennan, speaking for the Court, indicated that the Bennett Amendment did not preclude comparison of differences in pay but only those attributable to those four specific factors.[8]
Gunther, however, did not prove as definitive on the question as was first believed because it did not address all of the factors under consideration, and it was a narrow decision.[10] The Court did not determine how jobs might be properly compared, and one of the primary opponents of the majority opinion was soon-to-be Chief Justice of the United States William Rehnquist.[10] Rehnquist wrote explicitly against the comparable worth theory in his dissent (speaking as well for Warren E. Burger, Lewis F. Powell, Jr. and Potter Stewart), and Brennan countered that the majority opinion was not explicitly or implicitly supporting or refuting the comparable worth doctrine.[11] Gutman underscored that "the Gunther ruling did not validate comparable worth theory but merely permitted plaintiffs to try to make the prima facie claim under Title VII rules." He added, "So far plaintiffs have been thwarted in every case."[12]