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.

Training won't fix stupid

A fast-food restaurant fired a recently hired employee after its manager learned she was pregnant.

How do we know this was the manager's reason for the termination? Because he texted it to the employee (which she later posted on Facebook).

Temporary employees have permanent legal rights

Temporary employees do not leave their legal rights at your door. In fact, they enjoy the same rights as your permanent employees.

Consider, for example, EEOC v. Massimo Zanetti Beverage USA, in which an employer recently agreed to pay $65,000 to settle claims brought by a temporary employee that she was subjected to a sexually hostile work environment and fired after repeatedly complaining about it.

The allegations are not pretty.

LaToya Young began working as a temp at Massimo Zanetti in late January 2015. Within 10 days of starting her placement, a male co-worker began making sexually harassing comments to her:

• Telling Young that he had "blue balls" and asking her "Why don’t you help me out with that?"
• Telling Young that he wanted to "suck [her] bottom lip."
• Telling Young that he wanted to have sex with her, often using lewd language.
• Telling Young that he imagined himself engaging in sexual relations with her.
• Telling Young that he would "ball [her] up like a pretzel" and would "have [her] screaming."
• Grabbing his groin area while looking directly at her.
• Blowing kisses at her.
• Licking his lips and biting his bottom lip while looking at her.

Young complained three times to her supervisor. The harassment continued unabated after the first complaint. After the second complaint, Young alleges that her supervisor warned her that going to HR "would jeopardize her employment." After the third complaint, she was fired. 

According to EEOC Regional Attorney Kara Haden, "Employers must take appropriate action to stop harassment of all employees, including temporary workers." She adds, "We hope that this case sends a clear message that the EEOC will hold accountable employers who fail to protect all employees from workplace harassment."

Take heed of this lesson. Your temporary employees have the same civil rights as your permanent employees.

* Photo by Sunyu on Unsplash

Dirty Harry, the worst recruiter ever

After yesterday's detective novel of a post, I thought I'd go with something light and airy today (if you consider watching Dirty Harry conduct a job interview of a female interviewee, while sharing his views on feminism and job quotas, light and airy).


My worst job interview? The interviewer forgot my appointment, and never showed up to work. It all worked out in the end. I came back a week later, and that's how I got my first job after law school.

What's you job interview horror story? Share in the comments below, and I'll pull the best (or the worst?) for a future post.

No one should ever have to choose between their children and their job

Three female associates at Morrison & Foerster have filed an alleged $100 million class-action sex discrimination lawsuit against the firm. They claim that their employer “mommy tracks” lawyer moms working at the firm by denying them opportunities for advancement and higher pay.

According to the lawsuit [pdf] (care of the ABA Journal):

Hair discrimination; not a thing

Give me a head with hair, long beautiful hair
Shining, gleaming, steaming, flaxen, waxen
Give me down to there hair, shoulder length or longer
Here, baby, there, momma, everywhere, daddy, daddy
Hair, hair, hair, hair, hair, hair, hair, hair
Flow it, show it, long as God can grow it, my hair

– “Hair”

Friday’s tongue in check post about the beauty of baldness got me thinking about hair and employment law.

Or, more to the point, can an employer run afoul of discrimination laws by making an employment decision based on one’s hairstyle?

If you weren’t angry about the fired Saints cheerleader before, you will be now.

Remember Bailey Davis? She’s the New Orleans Saints cheerleader fired for violating the team’s social media policy.

Her offense? This photo, which she posted to her personal Instagram.

She’s already filed a civil rights complaint, and now she’s speaking out about her alleged discriminatory treatment, and discriminatory policies in professional cheerleading in general.

The other side of diversity

Photo by Igor Ovsyannykov on Unsplash

Workplace diversity has two sides.

One side says that employers cannot discriminate against minorities. The other says that employers cannot discriminate against non-minorities in favor of minorities.

Some people call this reverse discrimination. I just call it discrimination.

Let’s all try to remember to have gender-neutral employment policies

Photo by NeONBRAND on Unsplash

Former New Orleans Saints cheerleader Bailey Davis has filed a complaint with the EEOC accusing her former employer of having one set of rules for its male players, and another for its female cheerleaders.

The Saints fired Davis after it claimed she violated a rule prohibiting cheerleaders from appearing in photos nude, semi-nude, or in lingerie. She had posted a photo of herself in a one-piece outfit to her private Instagram.

Tattoos at work: more acceptance, yet still some legal risk

By ABC TV [Public domain],
via Wikimedia Commons

I am not a tattoo person. Yet, a whole lot of people are. And the numbers are increasing.

In fact, according to one recent survey, 3 in 10 Americans have at least one tattoo, up 50% in just four years. And, the younger you are, the more likely you are to sport a tattoo: 47% of millennials have a tattoo, as compared to 36% of gen Xers and only 13% of baby boomers.

NLRB dismisses James Damore charge against Google—complaints about too much diversity are not protected

It is lawful for an employer to fire an employee who complains that his workplace is too diverse? 

According to the NLRB, the answer, at least under federal labor law, is yes, the termination is legal.

Love and work aren’t always peanut butter and chocolate

I listened with great interest to the latest episode of the Hostile Work Environment podcast, which featured as its guest my good friend, Dan Schwartz, talking about the pitfalls of Valentine’s Day at work.

Dan cited CareerBuilder’s annual V-Day survey, which offers some interesting stats about the current state of office romances:

• 22 percent of workers have dated their boss (up 7 percent from last year)
• 31 percent of workers who started dating at work ultimately married each other
• Almost one in ten female workers whose work romance soured left their job
• 41 percent of workers had to keep their romance a secret

Yet, love and work do not always go well together, especially on Valentine’s Day.

Some lessons from the employee fired for middle-fingering Trump’s motorcade

Have your heard about Juli Briskman, the biker that flipped the finger to Trump’s passing motorcade?

https://twitter.com/julibriskman

Parental status discrimination is NOT a thing. But should it be?

I received some great feedback on LinkedIn on last week’s post on New York’s new paid family leave law.

That law grants paid leave for the same general reasons one can take unpaid leave under the FMLA. What it does not do, though, is create a new protected class.

Indeed, discrimination based on one’s status as a parent is, in and of itself, NOT illegal.

Bill O’Reilly claiming victim status is WHY we have a harassment problem

Over the weekend, the New York Times reported that Bill O’Reilly paid $32 million to settle a claim of sexual harassment brought against him by a former co-worker.

Yesterday, in an interview with the New York Times, O’Reilly let his accusers have it:

It’s horrible what I went through, horrible what my family went through. This is crap. It’s politically and financially motivated. We can prove it with shocking information. We have physical proof that this is bullshit.

Dads are parents, too — baby bonding and sex discrimination

Should new dad’s receive the same amount of time off from work to bond with their newly born child as do women? That is the question at the center of a lawsuit the EEOC recently filed against cosmetics giant Estée Lauder.

That time Justin Bieber’s “L’il Biebers” caused a sex discrimination lawsuit

File this one under the category of I can’t make this stuff up. Apparently, Justin Bieber’s testicles are at the center of a recently filed sex discrimination lawsuit.

Diversity is not an ideology

By now, you’ve likely heard about the male Google employee (James Damore) who circulated within the company a 10-page memo entitled, “Google’s Ideological Echo Chamber.” In this memo, he critiqued Google’s efforts at maintaining gender diversity within the ranks of its employees, arguing that women are underrepresented in tech not because of workplaces biases and discrimination, but because of inherent psychological differences between the sexes.

When equal pay is not “equal” pay

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, and substantial equality is measured by job content, not job titles. This 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 when the pay differential was “based on any other factor other than sex.” So, what happens if two comparable employees, one male and one female, come to you with different salary histories. Does the Equal Pay Act require that you gross up a lower earning female to match the salary of a higher paid male, or do the mere disparate prior salaries justify the pay disparity under the Equal Pay Act?

7th Circuit historically holds that Title VII expressly bans LGBT discrimination

If you spend any time reading or watching the news today, you will inevitably encounter much about the 7th Circuit’s historic (and correct, in my opinion) decision in Hivley v. Ivy Tech Community College [pdf]. You can read the background of this case here.

The court expressly held that “a person who alleges that she experienced employment discrimination on the basis of her sexual orientation has put forth a case of sex discrimination for Title VII purposes.” Hivley now stands in direct contradiction to the opinion of the 11th Circuit in Evans v. Georgia Regional Hosp., which sets up this issue for a showdown in the Supreme Court.