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OK to consider qualifications that aren’t in job description when setting pay

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in Compensation and Benefits,Discrimination and Harassment,Human Resources

Sometimes, a job applicant comes along with skills far in excess of the minimum requirements for the position. Those skills, experience and education may make the candidate very desirable, especially if the company wants to promote from within and believes the candidate could grow with the organization.

Setting the applicant’s compensation may mean having to offer more money than currently paid to employees performing the same type of job.

But what if a current employee sues, alleging the pay disparity constitutes some form of discrimination? Can you avoid liability if the job description doesn’t include the skills or education the desirable candidate possesses?

Yes, you can—if you are careful to document the reasons you offered the higher starting salary, and those reasons have nothing to do with sex, race or some other protected characteristic.

Recent case: Betty Warren worked for Solo Cup Co. as a tool crib attendant, making $7.52 per hour. Solo began computerizing the tool distribution process, and increasingly looked for employees with some computer savvy. Warren generally avoided computers whenever she could.

When the company added a new tool crib attendant to the third shift, it offered the position to a recently laid-off security guard. He had computer experience, a bachelor’s degree in anthropology and master’s degrees in education and urban planning. Solo managers thought he had potential with the company.

Solo offered the educated guard $7.75 per hour to start. Warren cried foul, alleging sex discrimination and Equal Pay Act (EPA) violations. She pointed out that the job description didn’t include computer skills or higher education.

The 7th Circuit Court of Appeals rejected Warren’s claims. It said that, under the EPA, employers could use any reason to justify higher pay to a male as long as that reason has nothing to do with sex. In this case, that reason was computer skills and the potential apparent in his education level. Warren was only a high school grad.

The appeals court also said Warren could not legitimately compare herself to the former security guard to argue that the salary differential was sex discrimination. It said employers could compensate employees differently, based on skills and education not listed in the job description. (Warren v. Solo Cup Company, No. 06-3504, 7th Cir., 2008)

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