By Meghan Droste, December 11, 2019

The discussion of pay inequality — the fact that women still earn less than men in the American workplace — generally seems to focus only on the private sector. The news, by the way, is not exactly great right now. Latina Equal Pay Day, the day when Latina pay catches up to what white, non-Hispanic men earned the year before, was just last month (November 20, 2019), 18 days later than it was in 2018. It was also far behind the equal pay days for other women: March 5 for Asian women, April 2 for the average for all women, April 15 for white women, August 22 for black women, and September 23 for Native American women. We clearly have a long way to go in this area.

The conversation is generally about how to improve things in the private sector, possibly because there is no private sector or industry-wide General Schedule for those not lucky enough to work for the federal government. That doesn’t mean that pay inequity doesn’t exist in the federal sector.  The EEOC issued decisions in multiple cases involving Equal Pay Act (EPA) claims this year. It’s important to be aware of them.

One initial note about EPA claims: Be careful when dismissing them for timeliness issues. While the 45-day deadline still applies for federal sector complainants, each violation restarts the clock.  That means that an employee has 45 days from each unequal paycheck to contact an EEO counselor. Be sure to keep this in mind when determining whether or not a complaint is timely.

When looking at the merits of an EPA claim, the Commission first determines whether the complainant can satisfy the elements of a prima facie case — the complainant received less pay than an individual of the opposite sex for equal work. Equal work is work that requires “equal skill, effort, and responsibility, under similar working conditions within the same establishment.”  See Mercedez A. v. USDA, EEOC App. No. 0120170574 (Mar. 7, 2019). You might have noticed one thing that is missing from what the complainant must prove: intent.  EPA claims do not turn on intent like disparate treatment claims under Title VII or other statutes.  See Mercedez A. v. USDA, EEOC Req. No. 2019004025 (Oct. 17, 2019) (“[I]ntent to discriminate is not a necessary element to prove an EPA violation.”).

An agency can avoid liability by showing that the difference in pay is due to: 1) a seniority system; 2) a merit system; 3) a system that determines earnings based on quantity or quality of production; or 4) any factor other than sex. See Mercedez A., EEOC App. No. 0120170574. Essentially, an agency “must establish that a gender-neutral factor, applied consistently, in facts explains the compensation disparity.” See id. To meet this burden, the agency must be able to articulate the actual reason for the disparity, not merely point to speculative reasons.

One last note: An applicant’s prior salary is not enough to justify a difference in pay. As the Commission has recognized, relying only on prior salary (also known as “market value”) can simply perpetuate pay disparities, in direct contradiction of the purpose of the EPA.  See EEOC Compliance Manual, 915.003, § 10-IV(F)(2)(g). When justifying why your agency offered a lower salary to one new employee than to another, make sure you have more you can point to, including factors such as education and years of prior experience. Droste@FELTG.com

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