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Different pay for men and women? Prepare to explain ‘other than sex’ factors

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in Compensation and Benefits,Discrimination and Harassment,Human Resources

The federal Equal Pay Act (EPA) is supposed to ensure that men and women doing the same job aren’t paid differently based on their sex. But employees can’t win EPA lawsuits simply by comparing their rates of pay and job titles. Lots of factors unrelated to gender may in­­fluence pay. Just because a woman performing the same job as a man earns less does not automatically pinpoint bias.

Of course, that doesn’t mean your company won’t be sued over pay disparities. You must always be ready to show you comply with the EPA. Do so by tracking each employee’s pay. That way, you’ll be able to explain that each increase along the way was the result of factors other than sex.

Recent case: Paulette Price and several other female employees at Northern States Power (NSP) worked as field representatives. Their job was to collect overdue bills and terminate utility connections when customers refused to pay. Many of the other field reps were men.

The women sued, alleging that they unlawfully earned less than the men.

There was no question that they performed the same job as the men, under similar working conditions. But the utility had a long list of explanations for the pay differences, including a company practice to pay employees transferring from other jobs within the company no less than they were paid previously. NSP also had a performance appraisal system that tied annual raises to a performance score.

None of the women could show that those factors weren’t applied to everyone regardless of sex. Nor did they argue that their appraisals were unfair or that men with the same performance scores got higher raises.

The court dismissed their case. It reasoned that the transfer pay policy and performance-based raises were neutral factors other than gender that explained the pay differentials. (Price, et al., v. Northern States Power, No. 11-1497, 8th Cir., 2011)

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