Jottings By An Employer's Lawyer

Sunday, November 28, 2004

All Department Heads Are Not Created Equal

At least not under the Equal Pay Act. That is the conclusion in Wheatley v. Wicomico County, Maryland (4th Cir. 11/22/04) [pdf], where the Director and Deputy Director of the Emergency Services Department, both female, argued that female department heads and assistant department heads were paid an average of $25,000 less than their male counterparts, a violation of the Equal Pay Act. Their argument:
all managers — regardless of department subject matter — ultimately perform the same supervisory duties. They all, for instance, prepare budgets, monitor employees, and conduct meetings.
A far too simplistic view according to the Court. It fails to take into account differences in subject matter and the differences in required skills. In fact, the Court held:
We decline to accept the argument, however, that employees with the same titles and only the most general similar responsibilities must be considered "equal" under the EPA. In actuality, plaintiffs present a classic example of how one can have the same title and the same general duties as another employee, and still not meet two textual touchstones of the EPA — equal skills and equal responsibility.

Revisiting an argument from times past, the court notes Congress was careful to choose "equal" not "similar" as the standard for eliminating discrimination in compensation on the basis of sex.

A second theory was lost because it was not raised until after the plaintiffs had rested and were facing what appeared to be (and ultimately was) a winning motion for judgment as a matter of law. Switching from comparing female to male department heads, the plaintiffs sought to argue that they were paid less than males who had been placed in a similar pay band in a recent compensation study. "Too late for that one," said both courts. Even if made timely it is unlikely that the argument would have flown as an EPA claim, but it is a reminder to employers that "pay banding" can create issues of equity in rather stark terms, since it is usually (as here) the employer who has claimed that all jobs in that category have similar value.

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