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FMG Law Blog Line

Leveling the Paying Field

Posted on: April 5th, 2018

By: Michael M. Hill

The Eleventh Circuit has held differences in work experience and salary history—factors many employers traditionally consider in setting pay rates—may not justify differences in pay between employees performing the same job.

Bowen v. Manheim Remarketing, Inc., No. 16-17237 (11th Cir. Feb. 21, 2018), was a suit under the Equal Pay Act (“EPA”), which requires employers to pay men and women the same for performing equal work on jobs requiring equal skill, effort, and responsibility, and performed under similar working conditions.  The plaintiff in Bowen was a woman who was promoted to a management position previously held by a man, and she alleged she was paid less than he was because of her sex.

The court, however, threw the case out before trial and granted judgment in favor of the employer because the employer showed that the male comparator, when he started in that same position, had been with the employer for twice as long as the plaintiff (6 years to her 3 years).  He also had come into the job from another position earning the same salary, whereas the plaintiff was promoted from a lower-paying position.  (One defense to an EPA claim is that the difference in pay was based on some “factor other than sex.”)

But the Eleventh Circuit reversed the trial court’s judgment on appeal and held the case should go to trial.  Despite these objective and undisputed gender-neutral factors between the two employees, the appellate court held that a jury still may find the employees’ sex played some role in the reason for the pay disparity.

One surprising point about the Eleventh Circuit’s holding is its reasoning that, even if the difference in work experience and salary history could justify starting the plaintiff off at a lower salary, these same factors would not justify maintaining this pay difference once she was performing the job proficiently.

Bowen should serve as a reminder to employers to review their payroll to ensure that men and women performing the same job are being paid equitably.  Factors that may justify a difference in pay at one point might not be sufficient further down the road.

In addition, while the EPA is a federal law, more and more states and cities are passing their own pay equity laws, many of which impose different obligations upon employers, such as prohibitions against asking job applicants their salary history, requiring employers to fully explain even the smallest differences in pay, or even requiring pay equity for protected classes other than gender (such as race, national origin, age, etc.).  As such laws are expected to become more commonplace, now is the time to get ahead of the curve.

If you have any questions or would like more information on navigating pay equity laws, please contact Michael M. Hill at [email protected].

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