Here is what makes equal pay claims so difficult to win


When a longtime government agency employee sued her employer for violating the Equal Pay Act, she argued that the defendant paid her male coworker more for “essentially the same job.” In her mind, their roles “were complementary and [their] duties equal.”

But that’s not enough to show prevail under the Equal Pay Act.

Hey, before I tell you about the Fourth Circuit decision I read last night after watching the Cowboys complete their annual Winter collapse and their mouthy fans finally accepting this inevitability, I want to remind you that last week’s edition of The Employer Handbook Zoom Office Happy Hour with EEOC Commissioner Andrea Lucas is now on YouTube. You can view it here. If you like the video, please click the like button, leave a comment, subscribe to the channel, or do all three.

Now, let’s talk about the Equal Pay Act.

The Equal Pay Act prohibits unequal pay for equal work between men and women. Specifically, an employer cannot “discriminate . . . between employees on the basis of sex by paying wages to employees . . . at a rate less than the rate at which [it] pays wages to employees of the opposite sex . . . for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.”

There are some exceptions. The one employers use most frequently is a differential based on any other factor other than sex. But, before we even get to the exceptions, the plaintiff must establish that she (or he) performed equal work on jobs requiring equal skill, effort, and responsibility. In other words, the Equal Pay Act claim will fail if the jobs the plaintiff and their comparator perform are different.

That was the plaintiff’s problem in the case I read. She was a “coastal planner.” She worked with a man who was also a “coastal planner.” They shared the same supervisor, worked closely together, and collaborated on issues of planning, grant progress, and program performance.

But he made about $13,000 more per year. So, Equal Pay Act violation, right?

Well, let’s see about that.

Perhaps the work they performed was similar. But “similarity” isn’t the same as performing equal work on jobs requiring equal skill, effort, and responsibility. The Fourth Circuit recognized that the work must be substantially equal or “virtually identical.” And that’s why it’s so hard to establish an Equal Pay Act claim.

The factual record showed that the plaintiff and her male comparator had many different responsibilities involving different projects and grant recipients. For example, he handled projects of special merit; she didn’t. He had expertise in coastal hazards, sea level rise, and shoreline erosion; she didn’t. The plaintiff’s male coworker was solely responsible for a “Climate Change Action Team.” He also managed aspects of another coastal planning job that she didn’t and helped organize “a marsh vulnerability assessment and adaptation strategy summit,” for which the plaintiff had no responsibilities.

Since the record showed that the plaintiff’s male comparator had job responsibilities and carried out duties that the plaintiff did not have, she could not establish that the two worked “virtually identical” jobs. These facts doomed her Equal Pay Act claim.

While Equal Pay Act claims may be difficult for employees to establish, they may have other similar potential claims under Title VII or state law, which could involve protected class characteristics other than sex. So, it’s wise to be proactive about pay audits to determine if and why employees in the same position earn different compensation. If you find unexplained pay discrepancies, the law may require you to raise the compensation of the lower paid worker, rather than lower the wages of the higher paid worker.

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