OK to vary pay–as long as there’s no sex bias

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in Discrimination and Harassment,Human Resources

Employees are supposed to receive the same compensation for the same work regardless of sex. But that doesn’t mean you can’t pay some men more than some women, even if it’s crystal clear that they’re doing the exact same job.

That’s because the Equal Pay Act (EPA) allows for differences that can be accounted for by any factor other than sex.

Consider, for example, employees with more experience than others doing the same job. Em­­ployers can adopt a salary schedule that includes additional money for years of experience. That’s a factor other than sex.

Recent case: Deborah was ap­­pointed to a recently vacated position as a municipal clerk after the previous job-holder retired. She earned $55,000 per year. But when she found out that the clerk she replaced, who was a man, had earned over $85,000, she sued for sex discrimination under the EPA.

But the municipality argued that the reason the man had been paid so much more was longevity. He had worked his way up the pay scale through regular annual increases for almost 30 years before retiring. The municipality said such annual ­increments were a “factor other than sex” that explained the different salaries. If Deborah stayed on for 30 years, she would also be eligible for similar annual in­­creases.

The court agreed and dismissed Deborah’s case. (Puchakjian v. Township of Winslow, No. 11-2974, 3rd Cir., 2013)

Final note: It’s a shame that so many meritless cases—like this one—end up in court. They’re preventable. Sometimes, all it takes is education. Too many em­­ployers don’t like to talk about what people earn because they mistakenly believe it might cause lawsuits. An honest conversation about pay might have kept this case out of court.

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