New requirements and prohibitions on compensation practices around the country are making pay equity a hot topic. These obligations seek to address the “gender pay gap,” which the latest reports estimate is at a little over 20%, with women across all occupations having median earnings around 78% of the median earnings of men. Although some dispute whether there is in fact a gender pay gap, its existence is so widely accepted that many jurisdictions are taking steps to promote pay equity. This article provides an overview of trends in pay equity litigation.
In 2016 alone, several states, including California, Maryland, Massachusetts and New York, implemented new pay equity legislation that imposes stricter standards on employers. These come with severe consequences for noncompliance. For example, the New York legislature amended the state Labor Law, effective 2016, to bar employers from prohibiting employees from discussing, disclosing, or asking about their compensation. This pay transparency provision (designed to facilitate employees’ sharing of pay data and to enhance the likelihood that pay disparities are discovered in the regular course of employee interactions and cannot be kept hidden by the employer) is comparable to newly added features of the fair pay laws in many other states. The New York Labor Law amendments also significantly increase available liquidated damages, to three times the amount of wages due.
A significant feature of much of the new pay equity legislation is the creation of broader comparisons among employees. For example, under the federal Equal Pay Act, an employee pursuing a claim of gender-based unequal pay must demonstrate that she performs work that is equal in skill, responsibility and effort to the work performed under similar conditions by one or more male comparators. Under the newly enacted California and Massachusetts laws, however, the employee must show only that her job duties are “substantially similar” to those of a male comparator. The recently enacted Oregon Equal Pay Act of 2017 likewise requires the employee to show that her job duties are “substantially similar” to those of a male comparator. Although the New York Labor Law was amended, effective in 2016, to create stricter pay equity requirements, its terms continue to use the “equal work” language used in the federal Equal Pay Act, not adopting the new, broader standards of the California and Massachusetts equal pay laws.
Moreover, this year, New York Gov. Andrew Cuomo issued Executive Orders 161 and 162 to regulate further the actions of state contractors on employee pay equity. Executive Order 161 prohibits state contractors from asking job applicants about prior salary history; Executive Order 162 requires state contractors to make detailed disclosures regarding employee demographic data, job titles, and salaries.
Litigation Trend: Legal Standard for Comparability of Work
The adoption of the “substantially similar” language in some states has created uncertainty about how similar the job duties must be to give rise to a valid claim. In other words, does this distinction — “equal work” under the federal Equal Pay Act versus “substantially similar work” under several states’ new laws — really matter?
Basic principles of statutory construction suggest that a difference in statutory language would indicate a difference in the laws’ requirements: The plain meaning of “equal work” implies identical duties, or duties that are exactly equivalent, whereas “substantially similar” suggests the duties of the plaintiff and one or more male coworkers need not be exactly the same. Rather, the duties may be similar or related.
In practice, however, courts have interpreted the Equal Pay Act’s “equal work” to mean what the words of the new California and Massachusetts statutes provide: “substantially similar work.” For example, in Summy-Long v. Pa. State Univ., the Middle District of Pennsylvania in 2016 held that the plaintiff’s Equal Pay Act claim could not survive the defendant’s summary judgment motion because she could not demonstrate a “substantial similarity” between her university professor job duties and those of the male colleagues with whom she sought to compare herself. Further expounding on the meaning of “equal work,” the Summy-Long court rejected the plaintiff’s argument that “a professor is a professor is a professor,” meaning that any university professor could be aptly compared with any other university professor. But the Summy-Long court also held that the plaintiff was not “substantially similar” to the identified male comparators because her “scholarly output and grant awards” — indicia of her level of performance — were far lower.
Similarly, in Chiaramonte v. Animal Med. Ctr., the Southern District of New York held in 2016 that the “equal work” standard under the Equal Pay Act and New York Labor Law should be applied to mean “substantially equal work” with “common duties or content.” Applying this standard, the court rejected the plaintiff’s attempt to compare herself — a board-certified primary care veterinarian, with clinical, fund-raising and administrative responsibilities as part of her assignment to the defendant’s President’s Council and role as Director of the Rehab Center — with various male veterinarians. The proposed comparators ranged from a “very, very sought after” veterinary dermatologist to the heads of specialty services such as neurology or cardiology.
After reviewing the record evidence, the court held that the plaintiff had improperly sought to conflate “job significance” with “job content.” It held that, under the applicable legal standards, only the latter, job content, was relevant. The court concluded that the plaintiff’s equal pay claims could not survive summary judgment because she had a “singular status” among the veterinary professionals at the defendant and her proffered comparators were not proper.
It is too early to see reported cases arising under any state’s newly implemented equal pay legislation adopting a standard of “substantially similar work.” But, the case law to date under the Equal Pay Act and the New York Labor Law, which incorporate the “equal work” standard, suggests that application of the concept of substantial similarity, in practice, may be not so different from application of the “equal work” standard.
Litigation Trend: Indicia of ‘Equal Work’ for High-Level Plaintiffs
With the growing attention on pay equity in many forums across the country, courts in recent years have seen numerous high-profile filings of equal pay claims under federal or state law involving high-level, professional female employees as plaintiffs. The allegations in these recent filings are a far cry from those in Corning Glass Works v. Brennan, the very first Equal Pay Act case to come before the U.S. Supreme Court. There, the court addressed the legality of a pay differential between female inspectors, who historically worked the day shift, and male inspectors, who historically worked the night shift. The issue of “equal work” did not even appear to be disputed, as the Supreme Court’s opinion does not analyze the term at all, and thus it appears that the work of all inspectors was assumed or conceded to be equivalent.
By contrast, recent filings by high-level, professional women reveal much more fact-intensive and individualized claims that focus on the specific nature of the plaintiff’s executive or managerial duties. Here, courts frequently conclude that, unless the plaintiff’s duties were similar not just in the level of responsibility, but also in the nature of responsibility, the female plaintiff and the male comparators are not performing “equal work” for purposes of the Equal Pay Act.
Chiaramonte, discussed herein, is a good example of a court’s efforts to undertake a detailed review of the exact duties performed by the high-ranking plaintiff, rather than to conclude that all employees at the same level — whether the same experience level or the same organizational level — are sufficiently similar to be characterized as performing “equal work.” In Chiaramonte, the Southern District of New York concluded that various board-certified, long-experience veterinarians could not properly be compared because they actually performed different functions — e.g., the plaintiff was an internist, while some of the purported comparators were specialists, among other differences.
In another example of this kind of analysis, Schultz v. Dixie State Univ., the District of Utah held in May 2017 that an Equal Pay Act plaintiff who held the title of vice president could not establish that she and male vice presidents performed “equal work,” because the plaintiff had insufficiently alleged that their duties were the same. Indeed, the court noted that the allegations demonstrated the plaintiff and her male comparators oversaw different departments and managed different functions, but not that they performed closely related or “equal” functions.
The last year also has seen female plaintiffs working in high-ranking positions in professional services firms filing cases alleging unequal pay based on gender, citing purportedly higher-paid male comparators. Should courts conclude that these plaintiffs work in different departments, oversee different functional areas, or otherwise have unique job duties that are different in kind from those of male comparators, courts may well conclude the plaintiffs have not met the “equal work” standard, even if the plaintiffs and their comparators hold the same title, have the same level of experience, or are peers in other organizational ways.
With rapid legislative developments on pay equity in numerous states, and with high visibility on the issue in many forums, pay equity litigation is likely to continue to occupy a prominent and important place in workplace legal issues.
***** Victoria Woodin Chavey, a member of this newsletter’s Board of Editors, and Ana C. Shields are principals at Jackson Lewis P.C. This article also appeared in The New York Law Journal, an ALM affiliate publication of this newsletter.
The views expressed in the article are those of the authors and not necessarily the views of their clients or other attorneys in their firm.