Examine actual job duties–not job descriptions–to determine if jobs are truly equivalent
Don’t rely on job descriptions to counter claims that you violated the Equal Pay Act (EPA). How the job is actually performed counts much more.
Recent case: Ellen moved from Norway to Minnesota to accept a job with the Honorary Norwegian Consulate in Minneapolis, working as a higher-education and research officer.
Ellen claimed that during her job interview, a consular official told her an innovation and business development officer was also being hired. The official allegedly asserted that the two jobs were equivalent, paid the same and had the same benefits.
After Ellen began her job, she discovered that a man had been hired for the second position and that he was earning $110,000. Her salary was just $70,000. She also discovered that the man received health insurance coverage for his family. Ellen had been denied those benefits for her domestic partner and children.
When Ellen complained, she said, a manager told her that she should be “prepared for consequences.” In the wake of her internal complaint, she alleged that she was denied travel payments and other support. Finally, when her initial contract expired, she was not rehired. Her male colleague was.
Ellen sued, alleging among other claims that the consulate violated the EPA by not providing her the same pay and benefits the man received.
The consulate moved to have the case dismissed, arguing the two positions weren’t substantially equal. It pointed to the different job descriptions, among other differences.
But the court said the job descriptions weren’t definitive. It said what counted was how the jobs were actually performed. Plus, there was the matter of what the consular official said during the interview. If Ellen really was told that the positions were equivalent, then that could be used to bolster her EPA claims. The court said her case could proceed. (Ewald v. Royal Norwegian Embassy, No. 11-CV-2116, DC MN, 2012)
Final note: Ellen’s foreign national status was irrelevant. The same employment rules apply to all employees in Minnesota. Likewise, a foreign employer still has to abide by U.S. and state labor laws when hiring employees to work here.
The courts’ perspective: Equal pay for equal work?
Equal pay cases aren’t as straightforward as simply comparing the size of women’s and men’s paychecks. Among the factors courts consider:
- The employee must show that she was paid less than a similarly situated male employee for equal work in a job that requires equal skill, effort and responsibility. Example: One court found that physician assistants (who are predominately male) and nurse practitioners (who are predominately female) had substantially similar jobs despite holding different certifications and having completed different educational paths. What counted was the patient care they performed, not their titles, education and licenses.
- The jobs must be performed under similar working conditions.
- Job descriptions matter, but actual work tasks override descriptions.
- What an employer says to an applicant during an interview counts—whether the topic is pay, benefits and comparable positions. That’s true even if what the applicant is told contradicts a job description or announcement.
- Different pay can be justified by a factor other than sex, including seniority and the like.
