Our employment discrimination attorneys have previously touched on issues involving equal pay violations in various other blog posts (Best Law Read: Is My Unequal Pay Claim Worth It?, What Is Pay Discrimination?). As previously discussed, it is illegal for employers to pay an employee less because they belong to a protected class. Under Title VII of the Civil Rights Act of 1964 (“Title VII”), the Americans with Disabilities Act (“ADA”), and the Age Discrimination in Employment Act of 1967 (“ADEA”), it is unlawful for employers to pay an employee less than another coworker doing the same job solely based on the employee’s race/color, religion, gender/sex, pregnancy status, LGBTQ+ status), national origin, age, or disability. The Equal Pay Act (“EPA”) specifically makes it illegal for employers to pay women less than men for doing the same job.
I am a woman claiming pay discrimination; what do I have to prove?
Top Gender Discrimination Attorney Answer: When an employee seeks to prove gender-based pay discrimination by showing a disparity in pay based on comparators, the employee must show that her employer pays her less than men in similar jobs. It may seem obvious that you are working the “same” job as another coworker—you have the same title, after all. However, whether you are working in the same position as someone else in the eyes of the law is a little more complicated than just sharing the same job title.
In a recent employment law decision, the United States Court of Appeals for the Fourth Circuit clarified what is necessary to show an employee works the “same” job as another coworker to prove pay discrimination claims under Title VII and the EPA. In Lee v. Belvac Production Machinery, Inc., No. 20-1805, 2022 WL 4996507 (4th Cir. Oct. 4, 2022), Shelly Ann Lee alleged that her former employer paid her less as its Controller than it did her male predecessor, DiTomasso, because of her sex. She argued that her former employer violated Title VII and the EPA for pay discrimination. The Appellate Court ultimately affirmed the lower court’s finding that Lee could not show that her position was sufficiently similar to her male predecessor to prove gender-based pay discrimination for either of her claims. Let’s explore why.
What is the “same job” under the EPA for pay-discrimination claims?
Best Pay Discrimination Lawyer Answer: For an employee to prove gender-based pay discrimination under the EPA, the employee must show that (1) the employer paid different wages to an employee of the opposite sex, (2) for equal work on jobs requiring equal skill, effort, and responsibility, which jobs (3) all are performed under similar working conditions. Lee, 2022 WL 4996507 at *1, citing Evans v. Int’l Paper Co., 936 F.3d 183, 196 (4th Cir. 2019).
The EPA standard is higher than the Title VII standard, which will be discussed later in this blog post. Under the EPA standard, the employee must show that she and her male comparator had “virtually identical jobs.” Id. Showing the jobs are virtually identical goes beyond just proving you held the same title and same general responsibilities. The Lee Court does not elaborate on what else could help an employee show that the jobs are virtually identical, so it is in your best interest to contact an experienced employment attorney to help evaluate and develop your case.
Even if an employee can prove the jobs were virtually identical, the employer can try and prove the wage differential was justified: based on a seniority system, merit system, quality or quantity of production system, or any other factor other than sex/gender.
How do you prove an unequal pay claim under Title VII?
Top Employment Discrimination Attorney Answer: To establish a claim of sex-based pay discrimination under Title VII, an employee can provide direct evidence, e.g., blatant remarks about the employee’s gender. Direct proof includes statements made by the decision maker related to the specific decision challenged (in the Lee case, the decision not to give an employee a higher raise) that is made close in time to the decision. If your manager says, “You get paid less than him because you are a woman,” that is direct evidence.
However, employers are typically not that obvious with their discrimination. If there is no direct evidence, then the employee must show that (1) she is a member of a protected class, (2) she was performing her job satisfactorily, (3) an adverse employment action occurred, and (4) the circumstances suggest an unlawfully discriminatory motive. Id. at *2, citing Spencer v. Va. State Univ., 919 F.3d 199, 207 (4th Cir. 2019).
If an employee can prove those four things, the employer must provide a legitimate, non-discriminatory explanation for the pay disparity. The employee then needs to prove the employer’s reason is “merely pretextual,” meaning it is false and offered to cover the employer’s true motive. Id. (Best Law Read: What is Pretext?; Proving Discrimination and Retaliation Claims Under Title VII).
Under Title VII, an employee does not have to prove that her job is identical to her proposed comparator, like under the EPA. The employee need only show that her job and the proposed comparator’s job are “similarly-situated in all respects.” Id., citing Spender v. Va. State Univ., 919 F.3d 199, 207 (4th Cir. 2019). To make this determination, the court will consider whether both employees held the same job description, were subject to the same standards, were subordinate to the same supervisor, and had comparable experience, education, and other qualifications. Id.
So, what was wrong with Lee’s claim for pay discrimination?
Best Unequal Pay Lawyer Answer: The Fourth Circuit Court held that Lee did not show that her job was similar enough to her male comparator to prove her pay discrimination claims under either the EPA or Title VII. The District Court and Appellate Court both conceded that Belvac paid Lee’s male comparator a higher wage— DiTomasso earned nearly $165,000 annually in his Controller position and Lee made $92,000 after a raise. However, both courts agreed that DiTomasso and Lee held the same job at a “superficial level.” Lee v. Belvac Prod. Mach., Inc., No. 6:18-CV-00075, 2020 WL 3643133 (W.D. Va. Jul. 6, 2020), aff’d, No. 20-1805, 2022 WL 4996507 (4th Cir. Oct. 4, 2022).
The Appellate Court held that Lee’s title change was part of a company restructuring rather than a true promotion. Lee, 2022 WL 4996507 at *2. Belvac’s CFO bifurcated the finance department—one side focusing exclusively on complex FP&A work and the other side focused on transactional accounting. In the restructuring, DiTomasso’s title changed to the more appropriate “Director of Finance,” and Lee’s title changed to “Controller.” Lee, 2020 WL 3643133 at *2.
Lee did not have decades of experience and advanced degrees in financial planning compared to DiTomasso, which Belvac claimed justified his higher salary. Besides the disparity in experience, there was also a stark difference in DiTomasso’s and Lee’s job duties. DiTomasso’s “Controller” position focused on sophisticated and complex strategic Financial Planning and Analysis (“FP&A”) work, while Lee’s “Controller” position focused on more simplistic transactional accounting. Further, DiTomasso’s job encompassed ninety-nine distinct FP&A tasks that Lee did not assume when her job title changed from “Accounting Manager” to “Controller.” Id. at *7.
When Belvac retitled Lee’s position, she did not take on any additional tasks, and her managerial responsibilities stayed the same. The only things in common between DiTomasso’s and Lee’s roles were the title and that they both reported to the CFO directly. According to the Court, the job description was not controlling. Instead, Lee’s actual performed job duties were more telling of whether she and her male predecessor shared the same job.
Upon review, the Appellate Court found that these factors (DiTomasso’s more experience, advanced degrees, and specialized job duties) supported a finding that Belvac had legitimate and non-discriminatory reasons for giving DiTomasso a higher wage than Lee. Lee, 2022 WL 4996507 at *2.
How do I find an attorney to help me file a gender-based pay discrimination claim?
Best Employment Lawyer Answer: If you are experiencing pay discrimination at your workplace but are unsure whether it rises to an actual legal claim, call the right attorney to schedule a free and confidential consultation with The Spitz Law Firm. (Read: What is the Spitz No Fee Guarantee?; Why Having Skilled Employment Attorneys Is Critical). Call our lawyers in Cleveland, Columbus, Detroit, Toledo, Raleigh, and Cincinnati to get help now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.
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