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Jobs must be ‘virtually identical’ (not similar) to bring equal-pay claim

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in Compensation and Benefits,Human Resources

Don't be afraid to set different salary levels for employees who hold the same title. Different pay for the same job title is fine as long as you can prove that the employees hold varying levels of responsibility, duties, skill, education or other such criteria.

If a female employee wants to bring a federal Equal Pay Act (EPA) claim, she must be able to make an "apples-to-apples" comparison to a male co-worker's job. Those two jobs don't need to be identical, but, as the following case shows, they must be "virtually identical," not just similar. It's job content, not job title, that determines whether jobs are identical enough to bring the case to trial.

Recent case: Two female county emergency services supervisors filed an EPA lawsuit, claiming the county paid male supervisors about $25,000 a year more than female supervisors. The women said all supervisors had the same supervisory duties, including preparing budgets, monitoring employees and conducting meetings.

A district court tossed out the case, and a federal appeals court agreed. Reason: The male supervisors' jobs and female supervisors' jobs were too different from each other.

When drafting the EPA, Congress clearly said jobs must be "equal" to allow an EPA claim to proceed to trial. What does "equal" mean? "Virtually identical," the court said.

While the supervisors' titles and general duties were the same, their work required different skills and responsibilities. For instance, some supervisor positions held by males required advanced degrees, unlike the supervisor positions held by the women. (Wheatley v. Wicomico County, Md., No. 03-2406, 4th Cir., 2004)

Online resource: For more advice on complying with the Equal Pay Act, see the EEOC's site, www.eeoc.gov/epa.

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