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You Do Not Need to Show Unequal Pay for Equal Work to bring a Title VII Pay Discrimination Claim

Male boss pointing at female employee to leave
By Joseph Fawbush, Esq. on December 12, 2019

Both the federal Equal Pay Act and Title VII of the Civil Rights Act prohibit pay discrimination based on gender. But while the EPA and Title VII are related, a plaintiff filing a claim under Title VII must only show that she is getting paid less than she would if she were male. There is not a requirement to first establish unequal pay for equal work under the EPA.

That was the takeaway from a recent decision from the Second Circuit Court of Appeals. District courts in the Second Circuit have often required a claimant to first show an EPA violation to proceed on a Title VII claim.

Discriminatorily Underpaid

The case arose when a female vice president filed a claim under the EPA and Title VII that she was paid less than male vice presidents at the company based on her sex. Despite raising the issue of pay numerous times, she continued to be paid less than the market rate for her position, while male vice presidents were paid at above market rates. The defendant argued that this was because the plaintiff's male counterparts performed different, more highly compensated work.

The district court dismissed the case in summary judgment since the plaintiff could not show equal work. The panel disagreed, writing that this standard was incorrect. Further, the statistical difference in pay was enough to show an inference of discrimination as required under Title VII - enough to meet the “de minimis" burden required to survive summary judgment, anyway.

A Clarification on Establishing Prima Facie Pay Discrimination Claims in New York

The plaintiff in the case had initially accepted the legal standard offered by defendants that she needed to show unequal pay for equal work for her Title VII claim to proceed. While typically new arguments cannot be raised on appeal, here the panel wrote that this rule is “prudential, not jurisdictional" and a review was particularly appropriate here, since the issue was purely a question of law.

The panel noted that in circumstances where a female employee has no male counterpart that does equal work, the standard in many district courts in the Second Circuit means an employee “would be without redress [under Title VII] even if her employer flatly admitted that her salary would have been higher had she been male."

It is a useful clarification for attorneys practicing employment law in the Second Circuit.

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