Shutterstock_158653760Equal pay for equal work

The Equal Pay Act of 1963, 29 U.S.C. 206(d), mandates equal pay for "equal work".

But what does "equal work" mean? A ruling by the Second Circuit focuses on the "content" of the "work" and rejects titles and labels as the basis for comparing male and female workers.

"Actual job content"

The court held in EEOC v. Port Authority of New York and New Jersey, No. 13-2705-cv (2d Cir. Sept. 29, 2014), that phrase requires a claimant to show that females did the same actual work as their male peers. As the panel noted:

[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. At the pleading stage, then, a plausible EPA claim must include "sufficient factual matter, accepted as true" to permit "the reasonable inference" that the relevant employees job content was "substantially equal."

Id. at 21-22 (quoting Ashcroft v. Iqbal, 556 U.S.. 662, 678 (2009)) (emphasis in original).

A case about lawyers

The lawsuit involved claims by the Equal Employment Opportunity Commission on behalf of female nonsupervisory attorneys" who worked in the Port Authority's law department. The EEOC alleged that "the Port Authority had violated the EPA by paying its female attorneys at a lesser rate than its male attorneys." Id. at 4.

The district court dismissed the case. The Second Circuit affirmed.

The panel rejected what it deemed the EEOC's theory — that "an attorney is an attorney is an attorney". It noted:

[D]espite a three-year investigation conducted at the Port Authority's cooperation, the EEOC's complaint and incorporated interrogatory responses rely almost entirely on broad generalizations drawn from job titles and divisions, and supplemented only by the unsupported assertion that all Port Authority nonsupervisory attorneys had the same job, to support its "substantially equal" work claim. [T]he EEOC's complaint was rightly dismissed.

Id. at 22.


The ruling points up a possibly common mistake in thinking about equal pay for equal work.

Under the Second Circuit's analysis, the EPA requires something like proof that a female worker had the same or similar skills, did the same or a similar job, and obtained the same or similar results as a male worker who got higher pay.

The fact that gender discrimination may have prevented or hindered the female worker from acquiring the same skills, doing the same work, and achieving the same results as her male peer may not matter under the EPA.

Apparently only Title VII — and not the EPA — deals with that aspect of gender injustice.