Wednesday, January 9, 2019

What does it mean for jobs to be "substantially equal" under the Equal Pay Act?


The Equal Pay Act requires that an employer pay its male and female employees equal pay for equal work. The jobs need not be identical, but they must be substantially equal. Substantial equality is measured by job content, not job titles.

The Act is a strict liability law, which means that intent does not matter. If a women is paid less than male for substantially similar work, then the law has been violated, regardless of the employer's intent.

This strict liability, however, does not mean that pay disparities always equal liability. The EPA has several built-in defenses, including seniority, merit, quantity or quality of production, or any other factor other than sex.

A recently filed case out of Boston delves into these issues.

According to CBS News, Elizabeth Rowe, the Boston Symphony Orchestra's principal flutist, claims that her employer unlawfully pays the principal oboist (a man) about $70,000 more per year.

According to the lawsuit, "Both the principal oboe and principal flute are leaders of their woodwind sections, they are seated adjacent to each other, they each play with the Boston Symphony Chamber Players, and are both leaders of the orchestra in similarly demanding artistic roles."

How did the oboist end up earning more? According to the lawsuit, the orchestra lured him away from the Metropolitan Opera Orchestra with the promise of higher pay. Rowe claims that she should be paid equally for similar work, regardless of the circumstances of his recruiting.

The orchestra claims that gender plays no role in how it sets salaries, which instead are determined by a variety of non-discriminatory factors, such as the difficulty of the oboe and its smaller pool of musicians.

What does it mean for two positions to be "substantially equal?'" According to the EEOC, employers should balance these five factors:

  • Skill: Measured by factors such as the experience, ability, education, and training required to perform the job. The issue is what skills are required for the job, not what skills the individual employees may have. For example, two bookkeeping jobs could be considered equal under the EPA even if one of the job holders has a master's degree in physics, since that degree would not be required for the job. 
  • Effort: The amount of physical or mental exertion needed to perform the job. For example, suppose that men and women work side by side on a line assembling machine parts. The person at the end of the line must also lift the assembled product as he or she completes the work and place it on a board. That job requires more effort than the other assembly line jobs if the extra effort of lifting the assembled product off the line is substantial and is a regular part of the job. As a result, it would not be a violation to pay that person more, regardless of whether the job is held by a man or a woman.
  • Responsibility: The degree of accountability required in performing the job. For example, a salesperson who is delegated the duty of determining whether to accept customers' personal checks has more responsibility than other salespeople. On the other hand, a minor difference in responsibility, such as turning out the lights at the end of the day, would not justify a pay differential. 
  • Working Conditions: This encompasses two factors: (1) physical surroundings; and (2) hazards.
  • Establishment: The prohibition against compensation discrimination under the EPA applies only to jobs within an establishment. An establishment is a distinct physical place of business rather than an entire business or enterprise consisting of several places of business. In some circumstances, physically separate places of business may be treated as one establishment. For example, if a central administrative unit hires employees, sets their compensation, and assigns them to separate work locations, the separate work sites can be considered part of one establishment.

I don't know enough about symphony orchestras to know how these factors all shake out in Boston. It seems to me, however, that a recruiting bump to lure someone from another employer is a solid "factor other than sex."

If you have concerns that men and women in your workplace are being paid differently for similar work, you should audit you pay practices, and, if necessary, even them out, before the government or a plaintiff comes calling.

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