Amy McLaughlin, Leigh Cole, Editors
Dinse, Knapp & McAndrew, P.C., Burlington
by Amy McLaughlin
You work hard to ensure that your workers are being paid fairly and justly—and, of course, equally when they are essentially performing the same job. Indeed, the federal Equal Pay Act (EPA) guarantees equal pay in those circumstances and prohibits compensation discrimination based on a worker’s gender. The risk of getting it wrong is huge. Luckily, you have a bit more guidance for analyzing your pay equity practices as a result of a recent decision from the U.S. 2nd Circuit Court of Appeals (whose rulings apply to Vermont employers).
Following her graduation from veterinary school, Deirdre Chiaramonte completed an internship and a residency at Animal Medical Center (AMC), a not-for-profit veterinary teaching hospital. She then began working for AMC as a veterinarian. In 2002, she was tasked with administering a program at AMC dedicated to serving the pets of donors and other important individuals. The program was formalized in 2004 as the president’s council.
Chiaramonte’s responsibilities as director of the president’s council included an additional set of job duties on top of her veterinary work. In 2005, she also helped establish a rehabilitation and fitness service at AMC and became responsible for directing it. After various personnel disputes, however, her employment was terminated on July 24, 2012.
Following her termination, Chiaramonte sued AMC, alleging it violated the EPA by paying male employees higher wages than it paid her for performing substantially equal work. At AMC’s request, the district court dismissed her claims, concluding that she hadn’t established a case of discrimination under the EPA because she failed to demonstrate that she performed work substantially equal to that of her better-paid male colleagues. Chiaramonte appealed to the 2nd Circuit, arguing that the district court erred in its conclusion.
The EPA prohibits employers from discriminating in compensation on the basis of gender. Under the legal standard the 2nd Circuit uses to analyze EPA claims, an employee can prove a violation of the law by demonstrating that (1) her employer pays different wages to employees of the opposite sex, (2) the employees perform equal work in jobs requiring equal skill, effort, and responsibility, and (3) the jobs are performed under similar working conditions. The court stated that the equal work inquiry, which is critical to an EPA claim, requires evidence that the comparable jobs are substantially equal.
However, “substantially equal” doesn’t mean identical. The court indicated that the employee must establish that the comparable jobs entail common duties or content and do not simply overlap in title or classification. According to the court, “A successful EPA claim depends on the comparison of actual job content; broad generalizations drawn from job titles, classifications, or divisions, and conclusory assertions of sex discrimination, cannot suffice.”
Decision of the 2nd Circuit
After considering the evidence, the 2nd Circuit concluded that the district court properly dismissed Chiaramonte’s EPA claim because she was unable to support it with anything more than mere generalizations drawn from job titles and divisions. Although she argued that her better-paid male colleagues performed substantially equal work because they were all department heads with similar credentials and significant responsibilities, the court of appeals concluded otherwise.
The 2nd Circuit found that even though Chiaramonte’s position as director of the president’s council and the rehabilitation center shared some common characteristics with her male coworkers’ positions (e.g., administrative responsibilities), she overlooked material differences in the congruity of job content. The appellate court reasoned:
Chiaramonte’s responsibilities as the Director of the President’s Council entailed primarily public- relations-type duties, as well as primary care. She performed basic treatments—parallel to those performed by a general practitioner—and would refer patients to specialists if necessary. Similarly, the overwhelming majority of [her] work at the Rehab Center could be performed by technicians and aides. By contrast, [her] better- paid male colleagues practiced in specialized areas of veterinary medicine and performed complex procedures. Unlike the alleged comparators, Chiaramonte was not responsible for supervising interns or other veterinarians, and she contributed little if any scholarly research. Moreover, [she] carried a low patient load, seeing only one to three patients a day. Although she did perform some rehabilitation treatments at the Rehabilitation Center, she could go months without treating patients. Some of her better-paid male colleagues, on the other hand, treated up to 15 patients a day.
In the end, the 2nd Circuit agreed with the district court, which noted that Chiaramonte’s efforts to draw comparisons between her job and the jobs of her five male coworkers “miss the mark because they essentially require the [c]ourt to embrace the principle that the work of all veterinarians is equivalent, thereby ignoring distinctions among the different specialties in veterinary medicine.”
The 2nd Circuit observed that “the fact that Chiaramonte and the alleged comparators are department heads whose positions share some common responsibilities is insufficient to demonstrate substantially equal work in light of the drastic differences in job content—that is, the differences in specialties, patient loads, supervision, teaching, and research contributions.” The appellate court concluded that other than the broad generalizations drawn from the fact that her alleged comparators were department heads and veterinarians, their work content simply wasn’t equivalent to hers.
Chiaramonte also claimed that the district court erred by failing to consider her evidence of company-wide pay discrimination. As the 2nd Circuit explained, however, she essentially presented as statistical evidence “a roll call of [veterinarians] and salaries, with no effort made to explain what each [veterinarian] did.” That, reasoned the court, was insufficient statistical evidence of pay disparity.
According to the court of appeals, whether “other female veterinarians are paid less than male veterinarians, without more, cannot suffice to establish that, because of sex alone, [Chiaramonte] was indeed paid less than males who performed substantially equal work.” The 2nd Circuit therefore concluded that the district court properly declined to consider her proposed statistical evidence of pay discrimination at AMC.
Significance for employers
As this case demonstrates, you must be prepared to adequately explain any pay disparity between male and female employees who have the same job title. The critical factor in any EPA case is whether the better-paid opposite-sex comparator actually performs substantially equal work. When conducting pay equity audits, you should focus, not on job titles, but on the actual work employees perform, and be able to validate any pay discrepancies with legitimate business justifications.
Amy McLaughlin can be reached at firstname.lastname@example.org or 802-859-7031.