common to the class", have representatives typical of the claimants, who would "fairly and adequately protect the interests of the class". Class actions may be brought, even in favor of people who are not already identified, for instance, if they have been discouraged from applying for jobs, so long as there is sufficiently specific presentation of issues of law and fact to certify the action. A significant practical problem for disparate impact claims is the "Bennett Amendment" in the Civil Rights Act of 1964 §703(h). Though introduced as a supposedly "technical" amendment by a Utah Republican Senator, it requires that claims for equal pay between men and women cannot be brought unless they fulfill the requirements of the Fair Labor Standards Act of 1938 § 206(d)(1). This says that employers have a defense to employee claims if unequal pay (purely based on gender) flows from "(i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex." By contrast, for claims alleging discriminatory pay on grounds of race, age, sexual orientation or other protected characteristics, an employer only has the more restricted defenses available in the CRA 1964 §703(h). In County of Washington v Gunther the majority of the Supreme Court accepted that this was the correct definition. In principle, this meant that a group of women prison guards, who did less time working with prisoners than men guards, and also did different clerical work, would be able to bring a claim—there was no need to be doing entirely "equal work". However Rehnquist J dissented, arguing the Amendment should have put the plaintiffs in an even worse position: they should be required to prove they do "equal work", as is stated in the first part of §703(h). Nevertheless, the majority held that the gender pay provisions could be worse because, for example, an employer could apply ""a bona fide job rating system," so long as it does not discriminate on the basis of sex", whereas the same would not be possible for other claims under the Civil Rights Act of 1964. Given that a significant gender pay gap remains, it is not clear why any discrepancy or less favorable treatment, should remain at all. Affirmative action Civil Rights Act of 1964, 42 USC §2000e-(j) United Steelworkers of America v. Weber,