Curious about the difference between pay claims under the Equal Pay Act versus Title VII?

Title VII is the nation’s leading anti-discrimination law. It prohibits discrimination on the basis of sex (as well as race, color, national origin and other protected classes). One form of prohibited sex discrimination is pay inequity. Another federal law, the Equal Pay Act, also prohibits pay inequities.

The Equal Pay Act is relatively uncommon in litigation. A recent federal lawsuit in Colorado illustrates why EPA claims are in some ways easier than a Title VII claim to prove while in other ways being more difficult. As that Court explained, in an EPA case, the plaintiff has to show, first, the following:

(1) she was performing work substantially equal to her male comparators in light of the skills, duties, supervision, effort, and responsibilities of the positions; (2) the work was performed under basically the same conditions; and (3) the male comparators were paid more under these circumstances.

Once the plaintiff makes that limited showing, the burden shifts to the company. The employer must then prove it did not discriminate, and it can do so only by showing “the pay differential is justified by a valid reason contained in a statutory list: (1) a seniority system; (2) a merit system; (3) a system where earnings are measured by quantity or quality of production; or (4) a factor other than sex. 29 U.S.C. § 206(d)(1).”

Those are the only permitted excuses for an established pay disparity, and it is the employer’s obligation to prove it falls into at least one.

Unlike Title VII, where the plaintiff has the ultimate burden to prove discriminatory intent, with regard to clams under the EPA, the employer has the ultimate burden to prove that the difference in pay was based on a factor other than sex.

The EPA’s test may seem like an easier way for a plaintiff to prove a claim, especially given the shifting burden. However, the plaintiff has to first produce proof of those three initial requirements. Basically she has to find proof of a male benchmark, that there is a man who performs basically the same job as she but receives higher pay. That is where the plaintiff in the Colorado federal case ran into problems, problems that resulted in her case being dismissed. She had proof that a male was paid more, but she wasn’t able to prove that he was doing basically the same job.

In dismissing her claim, the Court summarized its analysis, as follows:

It may be that Ms. Apodaca is seeking relief from sex discrimination rather than pay discrimination. For example, she notes that her education is different from Mr. Allen’s, that Mr. Allen received a raise when he was promoted to Director but that she did not, that Mr. Allen was paid significantly more than she was even though he was her subordinate, and that Mr. Allen delegated his extra duties instead of performing them. As noted above, these facts are not relevant to the equal-pay analysis. This is because the Equal Pay Act is concerned with the very limited question of whether two people are being compensated differently even though they are performing the same work. Questions about disparate education levels, disparate raises, disparate pay relative different positions in the organizational hierarchy, and disparate completion of duties might fall within the scope of disparate treatment based on sex discrimination which violates Title VII, but Ms. Apodaca has not brought such a claim. Given that Ms. Apodaca is represented by counsel, the Court cannot infer one.

As the Court noted, without proof sufficient to establish a male benchmark, the plaintiff’s EPA claim failed. While the Court noted, she might have had a Title VII claim related to how she was (she claimed) treated less favorably in a number of respects, she had not, the Court noted, asserted a Title VII claim.

The case illustrates the difference between the commonly litigated Title VII and its protections versus the less commonly litigated EPA.

Source: Apodaca v. Colorado Nonprofit Development Center.