American Nurses' Association v. State of Illinois

This class action charges the State of Illinois with sex discrimination in employment, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, and the equal protection clause of the Fourteenth Amendment. The named plaintiffs are two associations of nurses plus 21 individuals, mostly but not entirely female, who work for the state in jobs such as nursing and typing that are filled primarily by women. The suit is on behalf of all state employees in these job classifications. The precise allegations of the complaint will require our careful attention later, but for now it is enough to note that they include as an essential element the charge that the state pays workers in predominantly male job classifications a higher wage not justified by any difference in the relative worth of the predominantly male and the predominantly female jobs in the state’s roster.

*719 The complaint was filed in May 1984, and before the state answered, an amended complaint was filed early in July. Less than a month later the state moved to dismiss the complaint or, in the alternative, for summary judgment. In November the plaintiffs filed a memorandum in opposition to the state’s motion, to which they attached exhibits not obtained in the course of pretrial discovery — for there had been no discovery. In April 1985 the district judge dismissed the complaint under Fed.R. Civ.P. 12(b)(6) but without ruling on the state’s alternative request for summary judgment, 606 F.Supp. 1313. The ground for dismissal was that the complaint pleaded a comparable worth case and that a failure to pay employees in accordance with comparable worth does not violate federal antidiscrimination law. The plaintiffs appeal. They argue that their case is not (or perhaps not just) a comparable worth case and that in characterizing the complaint as he did the district judge terminated the lawsuit by a semantic manipulation. The state both defends the judge’s ground for dismissal and argues that we can equally well affirm on the ground that the state’s motion for summary judgment should have been granted.

Comparable worth is not a legal concept, but a shorthand expression for the movement to raise the ratio of wages in traditionally women’s jobs to wages in traditionally men’s jobs. Its premises are both historical and cognitive. The historical premise is that a society politically and culturally dominated by men steered women into certain jobs and kept the wages in those jobs below what the jobs were worth, precisely because most of the holders were women. The cognitive premise is that analytical techniques exist for determining the relative worth of jobs that involve dif•ferent levels of skill, effort, risk, responsibility, etc. These premises are vigorously disputed on both theoretical and empirical grounds. Economists point out that unless employers forbid women to compete for the higher-paying, traditionally men’s jobs— which would violate federal law — women will switch into those jobs until the only difference in wages between traditionally women’s jobs and traditionally men’s jobs will be that necessary to equate the supply of workers in each type of job to the demand. Economists have conducted studies which show that virtually the entire difference in the average hourly wage of men and women, including that due to the fact that men and women tend to be concentrated in different types of job, can be explained by the fact that most women take considerable time out of the labor force in order to take care of their children. As a result they tend to invest less in their “human capital” (earning capacity); and since part of any wage is a return on human capital, they tend therefore to be found in jobs that pay less. Consistently with this hypothesis, the studies find that women who have never married earn as much as men who have never married. To all this the advocates of comparable worth reply that although there are no longer explicit barriers to women’s entering traditionally men’s jobs, cultural and psychological barriers remain as a result of which many though not all women internalize men’s expectations regarding jobs appropriate for women and therefore invest less in their human capital.

On the cognitive question economists point out that the ratio of wages in different jobs is determined by the market rather than by any a priori conception of relative merit, in just the same way that the ratio of the price of caviar to the price of cabbage is determined by relative scarcity rather than relative importance to human welfare. Upsetting the market equilibrium by imposing such a conception would have costly consequences, some of which might undercut the ultimate goals of the comparable worth movement. If the movement should cause wages in traditionally men’s jobs to be depressed below their market level and wages in traditionally women’s jobs to be jacked above their market level, women will have less incentive to enter traditionally men’s fields and more to enter traditionally women’s fields. Analysis cannot stop there, because the change in rela *720 tive wages will send men in the same direction: fewer men will enter the traditionally men’s jobs, more the traditionally women’s jobs. As a result there will be more room for women in traditionally men’s jobs and at the same time fewer opportunities for women in traditionally women’s jobs — especially since the number of those jobs will shrink as employers are induced by the higher wage to substitute capital for labor inputs (e.g., more word processors, fewer secretaries). Labor will be allocated less efficiently; men and women alike may be made worse off.

Against this the advocates of comparable worth urge that collective bargaining, public regulation of wages and hours, and the lack of information and mobility of some workers make the market model an inaccurate description of how relative wages are determined and how they influence the choice of jobs. The point has particular force when applied to a public employer such as the State of Illinois, which does not have the same incentives that a private firm would have to use labor efficiently.

It should be clear from this brief summary that the issue of comparable worth (on which see the discussion and references in Paul Weiler, The Uses and Limits of Comparable Worth in the Pursuit of Pay Equity for Women, Discussion Paper No. 15, Program in Law and Economics, Harvard Law School, November 1985) is not of the sort that judges are well equipped to resolve intelligently or that we should lightly assume has been given to us to resolve by Title VII or the Constitution. An employer (private or public) that simply pays the going wage in each of the different types of job in its establishment, and makes no effort to discourage women from applying for particular jobs or to steer them toward particular jobs, would be justifiably surprised to discover that it may be violating federal law because each wage rate and therefore the ratio between them have been found to be determined by cultural or psychological factors attributable to the history of male domination of society; that it has to hire a consultant to find out how it must, regardless of market conditions, change the wages it pays, in order to achieve equity between traditionally male and traditionally female jobs; and that it must pay backpay, to boot. We need not tarry over the question of law presented by this example because as we understand the plaintiffs’ position it is not that a mere failure to rectify traditional wage disparities between predominantly male and predominantly female jobs violates federal law. The circuits that have considered this contention have rejected it, see Spaulding v. University of Washington, 740 F.2d 686, 706-07 (9th Cir.1984); Lemons v. City & County of Denver, 620 F.2d 228 (10th Cir.1980); Christensen v. Iowa, 563 F.2d 353 (8th Cir.1977), and the AFSCME case discussed below; we shall see shortly that this rejection may be compelled by the Supreme Court’s decisions in the Davis and Feeney cases.

The next question is whether a failure to achieve comparable worth — granted that it would not itself be a violation of law— might permit an inference of deliberate and therefore unlawful discrimination, as distinct from passive acceptance of a market-determined disparity in wages. The starting point for analyzing this question must be County of Washington v. Gunther, 452 U.S. 161, 101 S.Ct. 2242, 68 L.Ed.2d 751 (1981). Women employed to guard female prisoners were paid less than men employed to guard male prisoners. Since male prison inmates are more dangerous than female ones and since each male guard on average guarded ten times as many prisoners as each female guard, the jobs were not the same. Therefore, paying the male guards more could not violate the Equal Pay Act of 1963, 29 U.S.C. § 206(d), which requires equal pay only for equal work. The issue was whether it could violate Title VII, and the Court held that it could. A comparable worth study figured in this conclusion. The plaintiffs had alleged (and the allegation had to be taken as true for purposes of appeal, because the complaint had been dismissed, as in this case, for failure to state a claim) that the county had conducted a comparable worth *721 study and had determined that female guards should be paid 95 percent of what male guards were paid; that it had then decided to pay them only 70 percent; “and that the failure of the county to pay [the plaintiffs] the full evaluated worth of their jobs can be proved to be attributable to intentional sex discrimination. Thus, [the plaintiffs’] suit does not require a court to make its own subjective assessment of the value of the male and female guard jobs, or to attempt by statistical techhique or other method to quantify the effects of sex discrimination on the wage rates.” 452 U.S. at 181, 101 S.Ct. at 2253-54 (footnote omitted).

All that this seems to mean, as the dissenting Justices pointed out, is “that even absent a showing of equal work, there is a cause of action under Title VII when there is direct evidence that an employer has intentionally depressed a woman’s salary because she is a woman. The decision today does not approve a cause of action based on a comparison of the wage rates of dissimilar jobs.” Id. at 204, 101 S.Ct. at 2265 (emphasis in original). The relevance of a comparable worth study in proving sex discrimination is that it may provide the occasion on which the employer is forced to declare his intentions toward his female employees. In Gunther the county accepted (it was alleged) the recommendation of its comparable worth consultant regarding the male guards — decided to pay them “the full evaluated worth of their jobs” — but then rejected the recommendation regarding the female guards and did so because of “intentional sex discrimination,” that is, because they were female, not because they had easier jobs or jobs that, for any reason, the market valued below the guarding of male prisoners (however a comparable worth consultant might value them).

The State of Illinois asks us to limit the teaching of Gunther to eases where the employer has accepted the recommendation of the comparable worth consultant with respect to the male job classifications. But that would be to take undue liberties with the Supreme Court’s decision. The dissenting Justices pointed out that in limiting the Equal Pay Act to cases of equal work Congress had deliberately rejected liability based on the concept of comparable worth, and they argued that Congress had not intended to reverse field on the issue when it enacted Title VII a year later. The majority rejected this argument but left open “the precise contours of lawsuits challenging sex discrimination in compensation under Title VIL” ' 452 U.S. at 181, 101 S.Ct. at 2254. It used the facts alleged in the case to argue that the dissenting Justices were exaggerating the impact of the decision on employers, but did not suggest that its holding was limited to cases with the same facts. So limited, its only effect would be to discourage employers from commissioning comparable worth studies.

Gunther suggests the type of evidence that is sufficient but perhaps not necessary to establish sex discrimination in wages for different work. A more recent case out of the State of Washington, American Federation of State, County & Municipal Employees (AFSCME) v. Washington, 770 F.2d 1401 (9th Cir.1985), suggests the type of evidence that is insufficient. The state’s traditional policy had been to pay state employees the prevailing market rates of pay. Beginning in 1974, however, the state commissioned a series of comparable worth studies, each of which found that employees in predominantly female job classifications were paid about 20 percent less than employees in predominantly male job classifications judged to be of comparable worth. Eventually the state passed legislation providing for the phasing in over a decade of a wage system based on comparable worth. The suit charged that the state’s failure to act sooner was a form of discrimination. The case was tried and the plaintiffs won in the district court, but the Ninth Circuit reversed. It held that a decision to pay market wages is not discriminatory, that “comparable worth statistics alone are insufficient to establish the requisite inference of discriminatory motive,” id. at 1407, and that “isolated incidents” (id.) of inten *722 tional discrimination in the form of help-wanted ads specifying the sex of the applicant were not enough to convert the case into one of wage discrimination across different jobs.

The AFSCME case resembles our hypothetical case of the firm accused of sex discrimination merely because it pays market wages. AFSCME shows that such a case is not actionable under Title VII even if the employer is made aware that its pattern of wages departs from the principle of comparable worth to the disadvantage of women (plus the occasional male occupant of a traditionally woman’s job) and even if the employer is not so much a prisoner of the market that it cannot alter its wages in the direction of comparable worth, as eventually the State of Washington did. The critical thing lacking in AFSCME was evidence that the state decided not to raise the wages of particular workers because most of those workers were female. Without such evidence, to infer a violation of Title VII from the fact that the state had conducted a comparable worth study would, again, just discourage such studies.

The plaintiffs can get no mileage out of casting a comparable worth case as an equal protection case. The Supreme Court held in Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), that the equal protection clause is violated only by intentional discrimination; the fact that a law or official practice adopted for a lawful purpose has a racially differential impact is not enough. The Court applied this principle to sex discrimination in Personnel Administrator v. Feeney, 442 U.S. 256, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979). Massachusetts had a law giving preference in state employment to veterans. The preference was applicable to female as well as male veterans but of course most veterans are male. But as the purpose of the law was to benefit veterans of either sex rather than to favor men over women, the plaintiff’s constitutional challenge failed. “ ‘[Discriminatory purpose’ ... implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker ... selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.” Id. at 279, 99 S.Ct. at 2296 (citation and footnotes omitted).

These holdings cast additional light on the contention that intentional discrimination can be inferred from the state’s failure to eliminate wage disparities shown by the comparable worth report. Knowledge of a disparity is not the same thing as an intent to cause or maintain it; if for example the state’s intention was to pay market wages, its knowledge that the consequence would be that men got higher wages on average than women and that the difference might exceed any premium attributable to a difference in relative worth would not make it guilty of intentionally discriminating against women. Similarly, even if the failure to act on the comparable worth study could be regarded as “reaffirming” the state’s commitment to pay market wages, this would not be enough to demonstrate discriminatory purpose. To demonstrate such a purpose the failure to act would have to be motivated at least in part by a desire to benefit men at the expense of women.

Neither Davis nor Feeney were Title VII cases, a point emphasized in Davis. See 426 U.S. at 238-39, 96 S.Ct. at 2046-47. But when intentional discrimination is charged under Title VII the inquiry is the same as in an equal protection case. The difference between the statutory and constitutional prohibitions becomes important only when a practice is challenged not because it is intended to hurt women (say), but because it hurts them inadvertently and is not justified by the employer’s needs —when, in short, the challenge is based on a theory of “disparate impact,” as distinct from “disparate treatment” (= intentional discrimination). The plaintiffs in this case, however, have said that they are proceeding on the basis of disparate treatment rather than disparate impact. Their decision is understandable. In the usual disparate-impact case the plaintiff challenges *723 some job qualification — for example, that the applicant have a high-school diploma, or pass an entrance exam — as disproportionately excluding blacks or some other protected group, and the issue is whether the qualification is reasonably necessary for the job, in which event it is lawful notwithstanding its exclusionary effect. See, e.g., Aguilera v. Cook County Police & Corrections Merit Bd., 760 F.2d 844, 846-47 (7th Cir.1985), and cases cited there. It is not apparent what the analogy to an exclusionary job qualification would be in this case.

Another point is that the Bennett Amendment to Title VII (the last sentence in 42 U.S.C. § 2000e-2(h)) authorizes employers- to pay different wages to men and women provided that the difference would be lawful under the Equal Pay Act, which allows unequal pay for equal work if the inequality results from “any ... factor other than sex,” 29 U.S.C. § 206(d)(l)(iv). The Supreme Court in Gunther assumed without quite deciding that the Bennett Amendment allows an employer charged (necessarily under Title VII rather than the Equal Pay Act) with paying unequal wages for unequal work to defend by showing that the inequality is based on something other than sex, even if the result is a disparate impact. See 452 U.S. at 171, 101 S.Ct. at 2249. This reading would confine the scope of Title VII in a case such as the present to intentional discrimination.

So if all that the plaintiffs in this case are complaining about is the State of Illinois’ failure to implement a comparable worth study, they have no case and it was properly dismissed. We must therefore consider what precisely they are complaining about. Our task would be easier if the complaint had been drafted with the brevity that the Federal Rules of Civil Procedure envisage though do not require. Before the era of modern pleading ushered in by the promulgation of the rules in 1938, a plaintiff to survive a motion to dismiss the complaint had to plead facts which if true showed that his legal rights had been invaded. The problem was that without pretrial discovery, which ordinarily could not be conducted before the complaint was filed, the plaintiff might not know enough facts to be able to make the required showing. For fact pleading the federal rules substituted notice pleading. The complaint would have to indicate the nature of the plaintiff’s claim with only enough specificity to enable the parties to determine the preclusive effect of a judgment disposing of the claim (“a short and plain statement of the claim showing that the pleader is entitled to relief,” Rule 8(a)(2)). The Appendix of Forms to the federal rules illustrates with a complaint for negligence that, so far as the invasion of the plaintiff’s legal rights are concerned, says only: “On June 1, 1936, in a public highway called Boylston Street in Boston, Massachusetts, defendant negligently drove a motor vehicle against plaintiff who was then crossing said highway.” Form 9, 112; and see Rule 84 (“the forms contained in the Appendix of Forms are sufficient under the rules and are intended to indicate the simplicity and brevity of statement which the rules contemplate”). The plaintiff was expected to use pretrial discovery to gather the facts showing the defendant’s negligence and the defendant could serve contention interrogatories on the plaintiff to learn the theory behind the claim. See Rule 33(b), and Note of Advisory Committee to the 1970 amendment thereto. When discovery was complete, a pretrial order would be issued formulating the issues for trial; this order would perform many of the functions of the complaint in a system of fact pleading. See Rule 16. See generally Wright, The Law of Federal Courts § 68 (4th ed. 1983).

The idea of “a plain and short statement of the claim” has not caught on. Few complaints follow the models in the Appendix of Forms. Plaintiffs’ lawyers, knowing that some judges read a complaint as soon as it is filed in order to get a sense of the suit, hope by pleading facts to “educate” (that is to say, influence) the judge with regard to the nature and probable merits of the case, and also hope to set the stage for an advantageous settlement by showing the defendant what a powerful case they *724 intend to prove. The pleading of facts is well illustrated by the present case. The complaint is twenty pages long and has a hundred page appendix (the comparable worth study).

A plaintiff who files a long and detailed complaint may plead himself out of court by including factual allegations which if true show that his legal rights were not invaded. Kaiser Aluminum & Chemical Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir.1982); Associated Builders, Inc. v. Alabama Power Co., 505 F.2d 97, 100 (5th Cir.1974); Orthmann v. Apple River Campground, Inc., 757 F.2d 909, 915 (7th Cir.1985) (dictum); 5 Wright & Miller, Federal Practice and Procedure § 1357, at p. 604 (1969). The district judge thought the plaintiffs had done that here. Let us see.

The key paragraph of the complaint is paragraph 9, which reads as follows:

Defendants State of Illinois, its Departments and other Agencies subject to the State Personnel Code, and State Officials, have intentionally - discriminated and continue to intentionally discriminate against female state employees in the terms and conditions of their employment because of their sex and because of their employment in historically female-dominated sex-segregated job classifications. Defendants have intentionally discriminated and continue to discriminate against male state employees because of their employment in historically female-dominated sex-segregated job classifications. The acts, practices and policies of discrimination for which defendants are responsible include, but are not limited to, the following:

(a) Use of a sex-biased system of pay and classification which results in and perpetuates discrimination in compensation against women employed in historically female-dominated sex-segregated job classifications;

(b) Use of a sex-biased system of pay and classification which, because it results in and perpetuates discrimination in compensation against women employed

in historically female-dominated sex-segregated job classifications, adversely affects males employed in such historically female-dominated sex-segregated job classifications;

(c) Compensation at lower rates of pay of female employees in historically female-dominated sex-segregated job classifications which are or have been evaluated as being of comparable, equal, or greater worth than historically male-dominated sex-segregated job classifications which receive higher rates of pay;

(d) Compensation at lower rates of pay of male employees in historically female-dominated sex-segregated job classifications which are or have been evaluated as being of comparable, equal, or greater worth than historically male sex-segregated job classifications which receive higher rates of pay;

(e) Compensation at lower rates of pay of female employees than male employees performing work of equal skill, effort and responsibility under similar working conditions;

(f) More favorable treatment in compensation of male state employees than of similarly situated female employees;

(g) Discrimination in classification.

If this were the entire charging part of the complaint, there would be no question of dismissing it for failure to state a claim. The paragraph initially charges the state with intentional discrimination against its female employees, because of their sex; and this, standing alone, would be quite enough to state a claim under Title VII. It continues, “and because of their employment in historically female-dominated sex-segregated job classifications,” and then adds a claim on behalf of male employees in those classifications. The continuation could be interpreted as an allegation that the state’s failure to adopt a wage scale based on the principle of comparable worth violates Title VII, and if so fails to state a claim. But the mention of “sex-segregated” blurs the picture. If the state has deliberately segregated jobs by sex, it has violated Title VII. Anyway a com *725 plaint cannot be dismissed merely because it includes invalid claims along with a valid one. Nothing is more common.

Subparagraphs (a) through (g) present a list of particular discriminatory practices; and since they are merely illustrative (“not limited to”), the complaint would not fail even if none of them were actionable. Some are, some aren't. If (a), the “use of a sex-biased system for pay and classification which results in and perpetuates discrimination in compensation against women employed in historically female-dominated sex-segregated job classifications,” just means that the state is paying wages determined by the market rather than by the principle of comparable worth, it states no claim. But if it means to allege that the state has departed from the market measure on grounds of sex — not only paying higher than market wages in predominantly male job classifications and only market wages in predominantly female classifications, but keeping women from entering the predominantly male jobs (“sex-segregated”) — it states a claim. Subparagraph (b) adds nothing. If the state is discriminating against women by maintaining unwarranted wage differentials between predominantly male and predominantly female jobs, any men who happen to find themselves in predominantly female jobs will be, as it were, dragged down with the women — will be incidental victims of a discrimination targeted against others.

Subparagraph (c) is an effort to fit the case to the mold of Gunther. The critical difference, however, is that here the state is not alleged to have “evaluated” any of the predominantly female job classifications as being of comparable worth to predominantly male classifications. The Illinois Commission on the Status of Women, a public body, commissioned a comparable worth study which found the same sort of disparities that other comparable worth studies have found. The state itself— meaning the officials responsible for setting wage rates — has yet to reconfigure its wage system in accordance with the findings of the study, which is attached as an appendix to the complaint and is the evaluation to which paragraph 9(c) refers. But as we said earlier, the failure to accept the recommendations in a comparable worth study is not actionable. Paragraph 9(c) thus fails to state a claim — as does (d), which is the same as (c) except that it, like subparagraph (b), complains on behalf of male occupants of predominantly female jobs.

Subparagraphs (e) and (f) are inscrutable. If they complained about payment of unequal pay for the same work they would state a claim under the Equal Pay Act. But that Act is not cited in the complaint, perhaps deliberately, and the substitution of “work of equal skill” etc. for “equal work ... of equal skill” etc. may also be deliberate. The intention may be to claim that different pay for different but comparable work violates Title VII— and if so this is a comparable worth claim by a different name, and fails. However, when a defendant is unclear about the meaning of a particular allegation in the complaint, the proper course is not to move to dismiss but to move for a more definite statement. See Fed.R.Civ.P. 12(e); United States v. Employing Plasterers Ass’n, 347 U.S. 186, 189, 74 S.Ct. 452, 454, 98 L.Ed. 618 (1954).

That leaves subparagraph (g) — “Discrimination in classification.” This could be a reprise of the comparable worth allegations or it could mean that in classifying jobs for pay purposes the responsible state officials had used the fraction of men in each job as a factor in deciding how high a wage to pay — which would be intentional discrimination.

Maybe the allegations in paragraph 9 are illuminated by subsequent paragraphs of the complaint. Paragraph 10, after summarizing the comparable worth study, says, “Defendants knew or should have known of the historical and continuing existence of patterns and practices of discrimination in compensation and classification, as documented at least in part by the State of Illinois Study.” All that the study “documents,” however, is that 28 percent of the *726 employees subject to the state’s personnel code are employed in 24 job classifications, in each of which at least 80 percent of the employees are of the same sex, and that based on the principles of comparable worth the 12 predominantly female job classifications are underpaid by between 29 and 56 percent. For example, an electrician whose job is rated in the study at only 274 points in skill, responsibility, etc. has an average monthly salary of $2,826, compared to $2,104 for a nurse whose job is rated at 480 points. These disparities are consistent, however, with the state’s paying market wages, and of course the fact that the state knew that market wages do not always comport with the principles of comparable worth would not make a refusal to abandon the market actionable under Title VII. But at the very end of paragraph 10 we read, “Moreover, defendants have knowingly and willfully failed to take any action to correct such discrimination” (emphasis added), and in the word “willfully” can perhaps be seen the glimmerings of another theory of violation that could survive a motion to dismiss. Suppose the state has declined to act on the results of the comparable worth study not because it prefers to pay (perhaps is forced by labor-market or fiscal constraints to pay) market wages but because it thinks men deserve to be paid more than women. Cf. Crawford v. Board of Education, 458 U.S. 527, 539 n. 21, 102 S.Ct. 3211, 3218 n. 21, 73 L.Ed.2d 948 (1982). This would be the kind of deliberate sex discrimination that Title VII forbids, once the statute is understood to allow wage disparities between dissimilar jobs to be challenged {Gunther).

“Willfully” is, however, a classic legal weasel word. Sometimes it means with wrongful intent but often it just means with knowledge of something or other. Willful evasion of taxes means not paying when you know you owe tax. After reading the comparable worth study the responsible state officials knew that the state’s compensation system might not be consistent with the principles of comparable worth (“might” because there has been no determination that the comparable worth study is valid even on its own terms — maybe it’s a lousy comparable worth study). But it would not follow that their failure to implement the study was willful in a sense relevant to liability under Title VII. They may have decided not to implement it because implementation would cost too much or lead to excess demand for some jobs and insufficient demand for others. The only thing that would make the failure a form of intentional and therefore actionable sex discrimination would be if the motivation for not implementing the study was the sex of the employees — if for example the officials thought that men ought to be paid more than women even if there is no difference in skill or effort or in the conditions of work.

Paragraphs 11 through 31 of the complaint present the specific claims of each of the 21 named individual plaintiffs. In materially identical language each paragraph complains that the wage rate in the plaintiff’s “job classification is discriminatorily depressed because it is historically female-dominated and because of defendants’ continuing use of a sex-biased system of pay and classification,” and that the “Defendants continue to pay discriminatorily low wages to plaintiff [name] because she [in one case he] works in a historically female-dominated job classification.” Standing alone these allegations would appear to state merely a comparable worth claim. But they do not stand alone. In light of paragraphs 9 and 10, each of paragraphs 12 through 31 may conceivably (if somewhat improbably) be intended merely to identify each of the named plaintiffs as a victim of the discriminations alleged in the earlier paragraphs.

We have said that a plaintiff can plead himself right out of court. But the court is not to pounce on the plaintiff and by a crabbed and literal reading of the complaint strain to find that he has pleaded facts which show that his claim is not actionable, and then dismiss the complaint on the merits so that the plaintiff cannot re-plead. (The dismissal would preclude another suit based on any theory that the *727 plaintiff could have advanced on the basis of the facts giving rise to the first suit. Alexander v. Chicago Park District, 773 F.2d 850, 854 (7th Cir.1985); Bunker Ramo Corp. v. United Business Forms, Inc., 713 F.2d 1272, 1277 (7th Cir.1983).) The district judge did not quite do that here, because this complaint can easily be read to allege a departure from the principles of comparable worth, and no more. But that reading is not inevitable, and the fact that it is logical and unstrained is not enough to warrant dismissal. In the system created by the Federal Rules of Civil Procedure a complaint “should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). This language, repeated though it has been in countless later cases (see, e.g., Hishon v. King & Spaulding, 467 U.S. 69, 104 S.Ct. 2229, 2233, 81 L.Ed.2d 59 (1984)), ■ should not be taken literally; for taken literally it would permit dismissal only in frivolous cases. As we said earlier, if the plaintiff, though not required to do so, pleads facts, and the facts show that he is entitled to no relief, the complaint should be dismissed. There would be no point in allowing such a lawsuit to go any further; its doom is foretold. But this is not such a case. Although the complaint tries to make too much out of a comparable worth study that, standing alone, cannot provide a basis for a claim under Title VII — although the complaint appears to include the theory of violation that the Ninth Circuit later and rightly rejected — a complaint cannot be dismissed merely because one of the theories on which it proceeds, and the facts alleged in support of that theory, do not make out a claim for relief. A complaint that alleges intentional sex discrimination, which Gunther makes actionable even though the discrimination is between different job classifications rather than within the same classification, cannot be dismissed just because one of the practices, indeed the principal practice, instanced as intentional sex discrimination — the employer’s failure to implement comparable worth — is lawful.

Furthermore, a complaint is not required to allege all, or any, of the facts logically entailed by the claim. If Illinois is overpaying men relative to women, this must mean — unless the market model is entirely inapplicable to labor markets — that it is paying women at least their market wage (and therefore men more), for women wouldn’t work for less than they could get in the market; and if