The Equal Pay Act (EPA) prohibits employers from paying unequal wages for equal work and the law specifically prohibits wage discrimination on the basis of gender. To prevail on a claim of wage discrimination under the Equal Pay Act, a plaintiff must show that she was paid less for doing equal work as compared to her male colleagues. So, what exactly makes the work of two employees “equal?”
In Spencer v. Virginia State University, the United States Court of Appeals for the Fourth Circuit answered this question and granted summary judgement to the University because the work that the plaintiff, Dr. Zoe Spencer, performed and the work of her two male comparators was not substantially equal.
Under the EPA, an employee must first prove an initial (prima facie) case, which involves showing that:
- the employer pays higher wages to employees of the opposite sex;
- the employees perform equal work on jobs requiring equal skill, effort, and responsibility; and
- the jobs are performed under similar working conditions
Dr. Spencer, a sociology professor at Virginia State University (VSU), sued the VSU under the EPA and Title VII for paying her less than her male counterparts. Spencer successfully demonstrated that VSU paid her less than two male colleagues. The next step in proving her claim is to determine whether Spencer’s work should be considered “equal” to the work of the two male professors. To do so, the court held that Spencer must show that she and the male professors who are paid more than her “had equal jobs… in the strict sense of involving ‘virtually identical’ work, skill effort and responsibility, not in the loose sense of having some comparative value.”
Note that other federal appellate courts have less stringent definitions of “substantially equal.” For example, the Eleventh Circuit Court of Appeals recently rejected the idea that a comparator must be “nearly identical” and held instead that it is enough to be “similarly situated in all material respects.” Lewis v. City of Union City, Georgia, et al., No: 15-11362, (11th Cir. Mar. 21, 2019).
Spencer argued that VSU professors perform equal work because they all perform the same essential tasks (instructing students, preparing syllabi and lesson plans, inputting grades, etc.), which require the same essential skills (studying, preparing, presenting, discussing, etc.). The court, however, rejected her argument because it found differences between Professor Spencer’s job and the comparators’ jobs, such as:
- Professor Spencer and the male comparators served in different departments;
- Professor Spencer taught mostly undergraduate courses, while the male professors taught more graduate courses and worked longer hours
Moreover, the court found that, even if Professor Spencer had chosen comparable male professors, the University still would have won summary judgment given its affirmative defense. Under the EPA, employers can assert affirmative defenses that relieve them of liability for paying employees different salaries. One of these defenses is a legitimate seniority system. In Dr. Spencer’s case, VSU argued that it paid her less due to the University’s policy of paying former administrators who became professors 75% of their previous salaries. The two male professors had previously been administrators, while Dr. Spencer had not.
Key takeaways for Equal Pay Act claims (particularly in the Fourth Circuit Court of Appeals):
- To establish a claim under the Equal Pay Act, job titles do not need to be the same, but the work, skills, effort and responsibility involved in the work must be “virtually identical;”
- Different pay for equal work is permitted when the difference is based on seniority, merit, quantity or quality of work, or any other factor other than sex. But under this defense, the employer must prove that the reason they give is the reason for the pay differential, not just that it could explain the difference in compensation