                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 04-2225

JENNY WERNSING,
                                            Plaintiff-Appellant,
                               v.


DEPARTMENT OF HUMAN SERVICES, State of Illinois,
                                           Defendant-Appellee.
                       ____________
          Appeal from the United States District Court
               for the Central District of Illinois.
               No. 02-3149—Jeanne E. Scott, Judge.
                       ____________
    ARGUED SEPTEMBER 22, 2005—DECIDED OCTOBER 21, 2005
                       ____________


  Before EASTERBROOK, EVANS, and SYKES, Circuit Judges.

  EASTERBROOK, Circuit Judge. This appeal presents the
question whether a common personnel-management
practice violates the Equal Pay Act of 1963, 29 U.S.C.
§206(d). Like many employers both public and private, the
Department of Human Services in Illinois gives lateral
entrants a salary at least equal to what they had been
earning, plus a raise if that is possible under the scale for
the new job. Jenny Wernsing contends that the normal
raise at the Office of the Inspector General, where she
works, is 10%. This practice, Wernsing maintains, discrimi-
nates against women and thus violates federal law.
2                                                No. 04-2225

  When Wernsing was hired in 1998 as an “Internal
Security Investigator II,” the civil service classification of
that job allowed a monthly pay from $2,478 to $4,466,
depending on prior experience and years of service.
Wernsing, who had been earning $1,925 monthly as a
Special Agent with the Southern Illinois Enforcement
Group, started with the Department at $2,478, a raise of
almost 30%. People who came to the Department from more
remunerative positions landed higher salaries (though
lower percentage raises). For example, Charles Bingaman,
hired contemporaneously with Wernsing, had a prior salary
of $3,399 monthly as a Child Welfare Specialist III at the
state’s Department of Children and Family Services. He
received a monthly salary of $3,739 to start his new job, a
10% raise. Wernsing and Bingaman do the same work but
at substantially different pay as a result of this process for
determining initial salaries. Annual raises preserve the
relative gap until employees reach the maximum of the pay
scale. Bingaman will top out years before Wernsing does.
  Section 206(d)(1) establishes this rule: “No employer . . .
shall discriminate . . . between employees on the basis of
sex by paying wages to employees in such establishment at
a rate less than the rate at which he pays wages to employ-
ees of the opposite sex in such establishment for equal work
on jobs the performance of which requires equal skill, effort,
and responsibility, and which are performed under similar
working conditions”. Wernsing observes that she performs
the same tasks as Bingaman, under the same working
conditions, yet is paid substantially less; it follows, she
contends, that the Department must raise her salary. The
difficulty with this argument is that §206(d)(1) forbids
differences “on the basis of sex” rather than differences that
have other origins—and §206(d)(1)(iv) drives this home by
exempting any pay “differential based on any other factor
other than sex”. Wages at one’s prior employer are a “factor
other than sex” and so, the district judge held, an employer
No. 04-2225                                                 3

may use them to set pay consistently with the Act.
  Although three decisions of this court have held that prior
wages are a “factor other than sex"—see Dey v. Colt Con-
struction & Development Co., 28 F.3d 1446 (7th Cir. 1994);
Riordan v. Kempiners, 831 F.2d 690 (7th Cir. 1987);
Covington v. Southern Illinois University, 816 F.2d 317 (7th
Cir. 1987)—Wernsing contends that we should rule in her
favor anyway. She advances two principal arguments: first
that the Department lacks an “acceptable business reason”
for its approach; second that because all pay systems
discriminate on account of sex, any use of prior pay to set
salary must be discriminatory. We start with the first of
these contentions.
   Four appellate courts have held that wages in a former
job are a “factor other than sex” only if the employer has an
“acceptable business reason” for setting the employee’s
starting pay in this fashion. See Aldrich v. Randolph
Central School District, 963 F.2d 520 (2d Cir.), cert. denied,
506 U.S. 965 (1992) (with three Justices dissenting); EEOC
v. J.C. Penney Co., 843 F.2d 249 (6th Cir. 1992); Kouba v.
Allstate Insurance Co., 691 F.2d 873 (9th Cir. 1982); Glenn
v. General Motors Corp., 841 F.2d 1567 (11th Cir. 1988).
Wernsing insists that Illinois lacks an “acceptable”
reason—despite the evident benefit of making the job more
attractive to the best candidates—because the state’s civil
service criteria call for more attention to employees’
background and skills than to the market. New employees
are supposed to start at the bottom of the range, see 80 Ill.
Admin. Code §310.490(b), with higher salary only if justi-
fied by “directly related training and experience”, id. at
§310.490(b)(A). Making a public salary track wages else-
where is faithless to civil-service principles, Wernsing
insists. Yet the Equal Pay Act is not a back-door means to
enforce civil-service laws; if Wernsing thinks the Depart-
ment’s practice bad under state law, she is in the wrong
court. (Given the eleventh amendment and principles of
4                                                No. 04-2225

state sovereign immunity, federal courts cannot enforce
state law against the state itself.)
  Section 206(d) does not authorize federal courts to set
their own standards of “acceptable” business practices. The
statute asks whether the employer has a reason other than
sex—not whether it has a “good” reason. Accord, Taylor v.
White, 321 F.3d 710, 719 (8th Cir. 2003) (“the wisdom or
reasonableness of the asserted defense” is irrelevant);
Strecker v. Grand Forks County Social Services Board, 640
F.2d 96 (8th Cir. 1980) (en banc). Congress has not autho-
rized federal judges to serve as personnel managers for
America’s employers. As we say frequently when dealing
with equivalent questions under other federal statutes,
such as Title VII of the Civil Rights Act of 1964: “A district
judge does not sit in a court of industrial relations. No
matter how medieval a firm’s practices, no matter how
high-handed its decisional process, no matter how mistaken
the firm’s managers, Title VII and §1981 do not interfere.”
Pollard v. Rea Magnet Wire Co., 824 F.2d 557, 560-61 (7th
Cir. 1987).
  Employment-discrimination statutes forbid reliance on
criteria such as race and sex. Provided that they avoid
these, employers are free to set their own standards. Under
Title VII and other anti-discrimination statutes, once the
plaintiff makes a prima facie case of discrimination, all the
employer need do is articulate a ground of decision that
avoids reliance on the forbidden grounds. The plaintiff then
bears the burden to show that the stated reason is a pretext
for a decision really made on prohibited criteria. See St.
Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). Proof
that the actual reason disserves the employer’s interests
does not discharge that burden, as long as the employer
does not rely on one of the forbidden grounds. See Visser v.
Packer Engineering Associates, Inc., 924 F.2d 655 (7th Cir.
1991) (en banc).
No. 04-2225                                                5

  Kouba, which originated the “acceptable business reason”
requirement, did not explain its genesis; it was advanced as
ukase. The ninth circuit proceeded as if the Equal Pay Act
worked like the disparate-impact theory under Title VII: if
the plaintiff shows that an employment practice adversely
affects protected workers as a group, then the employer
must provide a strong reason (“business necessity”) for the
practice. See, e.g., Albemarle Paper Corp. v. Moody, 422
U.S. 405 (1975). (The Civil Rights Act of 1991 modified the
approach of Albemarle Paper, see 42 U.S.C. §2000e-2(k), but
the change does not matter for present purposes.) An
analogy to disparate-impact litigation under Title VII does
not justify a “business reason” requirement under the Equal
Pay Act, however, because the Equal Pay Act deals exclu-
sively with disparate treatment. It does not have a
disparate-impact component. County of Washington v.
Gunther, 452 U.S. 161, 170-71 (1981); Los Angeles v.
Manhart, 435 U.S. 702, 710-11 n.20 (1978). And in
disparate-treatment litigation under other employment-
discrimination statutes, the rule is the one we have already
summarized: the employer may act for any reason, good or
bad, that is not one of the prohibited criteria such as race,
sex, age, or religion.
  Circuits that have followed the ninth likewise do not
locate an acceptable-business-reason requirement in either
the statutory text or the rules developed under other
similar statutes. The eleventh circuit, for example, asserted
(again as a ukase) that employers are forbidden to set
salaries based on competitive markets, and as prior salary
reflects economic competition it is off limits to employers.
The eleventh circuit recognized that it was disagreeing with
our holding in Covington and stated: “The flaws of the
Covington decision are that the Seventh Circuit implicitly
used the market force theory to justify the pay disparity
and that the Seventh Circuit ignored congressional intent
as to what is a ‘factor other than sex.’ Consequently, we
6                                              No. 04-2225

reject Covington because it ignores that prior salary alone
cannot justify pay disparity.” 841 F.2d at 1571. We’re not
sure what “congressional intent” the eleventh circuit
thought we had ignored; Congress makes legal rules
through statutes rather than pure “intent” demonstrated by
statements in committee reports or on the floor. See, e.g.,
Pierce v. Underwood, 487 U.S. 552, 566-68 (1998); Brill v.
Countrywide Home Loans, Inc., No. 05-8024 (7th Cir. Oct.
20, 2005). The Equal Pay Act forbids sex discrimination, an
intentional wrong, while markets are impersonal and have
no intent. To the extent other circuits believe that employ-
ers must disregard wages set in markets, they have adopted
a variant of the comparable-worth doctrine—the view that
wages must be based on “merit” rather than forces of supply
and demand. This circuit rejected the comparable-worth
theory in American Nurses’ Ass’n v. Illinois, 783 F.2d 716
(7th Cir. 1986), and we have been given no reason to
reconsider that decision.
  Our opinion in Dey reiterated the conclusion of Covington:
“The factor [other than sex] need not be ‘related to the
requirements of the particular position in question,’ nor
must it even be business-related.” 29 F.3d at 1462. The
disagreement between this circuit (plus the eighth) and
those that require an “acceptable business reason” is
established, and we are not even slightly tempted to change
sides. Our position has the support of the language in
§206(d), the practice under other employment-discrimina-
tion regimes, and the holdings of the eighth circuit. The
opposing view rests on an “intent” that, if not manufactured
by the judges rather than discovered by digging through
legislative debates, lacks any footing in enacted texts.
  Thus we turn to Wernsing’s second argument: that
because women earn less than men from private employ-
ment, all market wages must be discriminatory and
therefore must be ignored when setting salaries. The
premise is correct; many empirical studies show that
No. 04-2225                                                  7

women’s wages are less than men’s on average. See, e.g.,
Statistical Abstract of the United States Table 681 (2004-
05); Finis Welch, Growth in Women’s Relative Wages and in
Inequality Among Men: One Phenomenon or Two?, 90 Am.
Econ. Rev. 444 (Papers & Proceedings 2000). But the
conclusion is a non-sequitur. Wages rise with experience as
well as with other aspects of human capital. That many
women spend more years in child-rearing than do men thus
implies that women’s market wages will be lower on
average, but such a difference does not show discrimina-
tion—a point that we made in American Nurses, 783 F.2d
at 719. See also June O’Neill, The Gender Gap in Wages,
circa 2000, 93 Am. Econ. Rev. 309 (Papers & Proceedings
2003).
   Wage patterns in some lines of work could be discrimina-
tory, but this is something to be proved rather than as-
sumed. Wernsing has not offered expert evidence (or even
a citation to the literature of labor economics) to support a
contention that the establishments from which the Depart-
ment recruits its employees use wage scales that violate the
Equal Pay Act and thus discriminate against women. If sex
discrimination led to lower wages in the “feeder” jobs, then
using those wages as the base for pay at the Department
would indeed perpetuate discrimination and violate the
Equal Pay Act. See Corning Glass Works v. Brennan, 417
U.S. 188 (1974). Cf. Bazemore v. Friday, 478 U.S. 385
(1986); Reese v. Ice Cream Specialties, 347 F.3d 1007 (7th
Cir. 2003). But as the record is silent about this possibility,
and plaintiffs bear the burden of persuasion in civil litiga-
tion, the Department is entitled to the summary judgment
it received.


  When Wernsing asked the Department for a raise to
match Bingaman, the reason she gave is that her prior
salary had been lower than his because she had worked for
8                                                No. 04-2225

a small, nonprofit employer; she did not suggest that either
her former employer or Bingaman’s was out of compliance
with the Equal Pay Act. Indeed, she has not even tried to
show disparate impact; for all this record shows, the Depart-
ment’s female internal security investigators make as much
on average as the men. Wernsing’s position from the
beginning has been that the Department’s salary-setting
practices hurt her, not that they harm women generally.
(Wernsing demonstrated on the record that four other men
holding the Internal Security Investigator II position also
are paid more than she is because they came to the Depart-
ment from higher-paying positions. She contends that the
district court should have let her make a similar demon-
stration for other men, but the absolute number is beside
the point and so the ruling in limine, right or wrong, does
not affect the judgment.)
  In lieu of proof, Wernsing relies on a statement that a
Senate committee made 42 years ago: that “the wage
structure of ‘many segments of American industry has been
based on an ancient but outmoded belief that a man,
because of his role in society, should be paid more than a
woman even though his duties are the same.’ ” S. Rep. 176,
88th Cong. 1st Sess. 1 (1963). That was indeed the view of
many employers in 1963, the year the Equal Pay Act came
into force, one year before Title VII forbade sex discrimina-
tion in private employment, and nine years before Title VII
was extended to public employment. But what relevance
can this have now that anti-discrimination statutes have
been in force for more than two generations? It remains
possible that pay differences between men and women
reflect discrimination rather than choices made about
allocating time between family and market endeavors, and
some industries may have been successful in disguising
their discrimination. But if this is so it must be established
by evidence rather than assumed. Wernsing has abjured
her opportunity to supply evidence.
No. 04-2225                                          9

                                            AFFIRMED

A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—10-21-05
