Focus on Equal Pay Act May Lead to New EEOC Case Law

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By Lydell C. Bridgeford  

The Equal Employment Opportunity Commission's renewed interest in enforcing the Equal Pay Act may stir new legal debates over some of the law's ambiguous terms, Jones Day attorney Alison B. Marshall said during a session of the Society for Human Resource Management's Employment Law and Legislative Conference March 12.

“The Equal Pay Act is receiving a tremendous amount of attention from the EEOC,” Marshall told attendees, pointing out that the commission has designated pay equity a top priority in its strategic enforcement plan for fiscal years 2013-2016.

But she said the law has some “ambiguity in its terms,” such as “within any establishment” and “equal work,” which can create many opportunities for open questions and legal discussions on enforcing the law.

In fiscal year 2012, EEOC filed only two lawsuits under the EPA and received 1,082 charges alleging violations. The law, which is an amendment to the Fair Labor Standards Act, is codified at 29 U.S.C. § 206(d). The commission also enforces pay equity under Title VII of the 1964 Civil Rights Act.

Under the EPA, the comparison is between employees working at the same “establishment,” Marshall explained. “That technically means the same distinct physical place,” she said. “EPA seems to narrow the scope of an establishment, compared to Title VII cases.”

Some courts, however, have opted instead “to look at how integrated” the operation is, Marshall said. For example, a court may find that a drugstore chain where pharmacists are all “managed on a regional basis and compensation is set on a regional basis is an integrated operation,” Marshall said.

Potentially, “the courts will say it's a single establishment. It doesn't always mean a distinct physical place. It is going to be a case-by-case analysis,” she said.

“The key issue in most EPA cases is whether the comparators are performing equal work,” Marshall said, adding that the burden of proof lies on the plaintiff to show that the positions are “equal.”

“The courts have been really focusing on what does it mean to be substantially equal,” she said. “Equal does not mean identical.” The job duties need only be “substantially equal.”

When conducting this analysis, Marshall said, courts look at the content of the job as performed and do not simply rely on job descriptions and job titles. Judges litigating EPA cases are “interested in the skills required for the job and not what a particular employee brings to the job,” she said.