Legal Update: Fair Pay Act is Back, and Gone

Sen. Barbara Mikulski (D-MD) and six other Senate Democrats tried to revive the controversial legislation. A version passed the House in 2009, but stalled in the Senate.

Some supporters of the Lily Ledbetter Fair Pay Act, which might have been expected to provide some momentum, balked at the additional proposed legislation, at least until the results of Ledbetter became known. The last major action in the Senate was the failure to bring the bill to a vote in November 2010. There was a repeat of that on June 5. Equal pay for women has been a stated priority of the Obama Administration. Interestingly, the number of sex-based pay discrimination charges has declined slightly from 2,268 in 2009 to 2,191 in 2011 (Brower, 2012). Brower also indicated that the number of EEOC pay-related suits is down in the Obama Administration compared to activity during the Bush years.

With the formation of a federal interagency task force on pay equity by the current Administration, we might have expected litigation headlines. It’s been quiet, although there have been news reports that EEOC has been piloting approaches to pay discrimination cases.

EEOC did not fare well in a recent Equal Pay Act (EPA) case, EEOC v. Port Authority of NY and NJ, No. 10 Civ. 7462, S.D.N.Y., 5/17/2012. The case involved the Port Authority’s non-supervisory in-house attorneys, and the allegation was sex discrimination in failing to provide equal pay for equal work. EEOC argued that claimants and comparators all had the same title and job code, were all valuated on the same performance competencies, and had no job descriptions (allegedly not at all) identifying different duties.

As the court noted, the argument was essentially “an attorney is an attorney is an attorney.” But the court wasn’t buying it.

EPA hinges on a showing that responsibility, skill, and effort are equal. EEOC covered responsibility, but not the other two factors. “Abstract generalities” that could apply to any attorney will not do. Having the same title or job code does not establish same job content. “It strains credulity to argue that Port Authority, which does not set wages based on a lockstep scale, does not factor into its pay decisions the kind and quality of work its attorneys perform. The allegations as a whole simply do not rise to the requisite level of facial plausibility.” Case dismissed, for failure to state an EPA claim for which relief may be granted.

In addition, last month we had a case in the Seventh Circuit where the panel seems to be urging reconsideration of the circuit’s position on refusing to consider assignment to a vacant position as a reasonable accommodation. The decision in Port Authority would seem to be in line with an argument that an attorney (or someone in another occupation) may not be fungible across assignments. Assignment to a vacant position might be reasonably expected to be considered, but it still would not be reasonable if it created undue hardship for the employer. As noted previously, violation of seniority provisions seems to qualify as undue hardship, but there is no clear judicial guidance and a circuit split on this kind of accommodation.

Reprinted with permission from the Personnel Testing Council of Metropolitan Washington.

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About Richard Tonowski

Rich joined EEOC in 2001 as a Psychologist, worked as the assistant HR director for strategic policy and planning from 2003 to 2006, and then became Chief Psychologist. In that role he reviews test validation documentation, conducts statistical analyses regarding employment practices, and consults with EEOC attorneys and investigators. Prior to his time with EEOC, he had over 20 years of experience involving public sector test development and validation, performance appraisal, employee surveys, diversity management, and labor relations. He also had experience in providing written and oral testimony as an expert witness in court cases, and in federal sector hearings conducted by EEOC and the Merit Systems Protection Board. Rich was awarded his Ph.D. in psychology by Rutgers University, and is certified as a Senior Professional in Human Resources by the credentialing affiliate of the Society for Human Resource Management. He is also an Adjunct Associate Professor of Human Resources Management and Development at University of Maryland University College where he teaches a graduate course.

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