No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees … at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions…. 29 U.S.C. § 206(d)(1).
In an Equal Pay Act case, the employee-plaintiff has the burden of establishing a case of discrimination initially by showing that employees of the opposite sex were paid different wages for equal work. The initial case is limited to a comparison of the jobs in question, and does not involve a comparison of the individuals who hold the jobs. To make out a case, the employee bears the burden of showing that the jobs being compared are “substantially equal.” See 29 C.F.R. § 1620.13(a); see also Spaulding v. University of Wash.,(9th Cir.1984). Significantly, under the Act, the employee does not have to demonstrate that the jobs in question are identical; he must show only that the jobs are substantially equal.
The “substantial equal” part is what the dispute often focuses in this types of cases. The courts employ a two-step “substantially equal” analysis in Equal Pay Act cases. (i) The critical finding on the equal work issue is whether the jobs to be compared have a “common core of tasks”, i.e. whether a significant portion of the two jobs is identical. (ii) Once that is established, the court then must determine whether any additional tasks of one job and not the other make the two jobs “substantially different.” Brobst v. Columbus Srvs. Int’l (3d Cir.1985).
Further, an employer may defend a case by showing that the disparity in pay is based on “a seniority system; a merit system; (a system which measures earnings by quantity or quality of production; or (a differential based on any other factor other than sex.’” 29 U.S.C. § 2069(d)(1). These defenses must be proved by the employer. A comparison of resumes can often be useful in supporting one side of the case or the other, as resumes can show a difference or lack of difference in experience and/or qualifications.
Thus, in Stanley v USC (1999), the employer was able to successfully to defend the case brought by a female basketball coach by showing that the reason their male coach was paid more was because he had 14 years more of coaching experience, and he also had the marketing experience that the female Plaintiff in that case didn’t.
When an Equal Pay Act case is evaluated, it’s very important to cover all of the above possible defenses that the employer might use. If you are a female who considers to bring a claim, at a minimum, you should have good familiarity with the qualifications, experience and education of the male employees who are paid more, and who you plan to compare yourself to in your potential case. It would be also very useful to ask the employer, if at all possible, why these male employees are paid more. Evaluating the legitimacy of employer’s response is one of the important steps in evaluating where there is sufficient evidence to bring this type of case.