An employee who sues under the Equal Pay Act (EPA)—alleging that she was paid less than someone of the opposite sex—has a tough case to make if she bases her case strictly on how much she was paid. She has to prove that the job held by the member of the opposite sex is equivalent to her own, and that no reason other than gender explains the difference. (Note that men can and have filed—and won—EPA lawsuits.)
To determine equivalence, the employee has to compare the actual content of her job and that of the man to whom she is comparing herself. It doesn’t matter where the two are on the organizational chart. What matters is what the two actually do day in and day out.
A recent case shows how hard that is to do and how rare it is for the employee to win an EPA case.
Recent case: Jill rose through the ranks at the Florida Department of Business and Professional Regulation, reaching the rank of bureau chief of operations. She earned about $61,500, a salary that had been capped by a five-year statewide pay freeze.
Then she went on a state website that listed the salaries of all state employees. She discovered that a man she supervised earned more than she did, as did several male bureau chiefs. Her predecessor also had a higher salary than Jill’s when he retired.
Jill filed an EEOC complaint alleging EPA violations.
The court dismissed Jill’s claim that was based on the male subordinate, since their jobs obviously weren’t equivalent. There’s no law that says subordinates can’t earn more than their supervisors. Then the court compared the bureau chief jobs, which were lateral positions at the same level on the state’s organization chart. However, those jobs had different responsibilities, so they weren’t legitimate comparators.
The court did agree that Jill could compare herself to the man she had replaced, who had been paid more. The difference, however, was explained by the fact that his salary increases occurred before the gender-neutral pay freeze, which held Jill’s pay down. Her case was dismissed. (Blackman v. Florida, No. 13-14742, 11th Cir., 2015)