By Deryn Sumner

Although claims of unequal pay occur less in the federal government than in the private sector, thanks to the published salary scales issued by OPM, they do still occur.  As a reminder, EPA claims can be filed by either male or female employees.  In order to succeed on a claim, the complainant must establish that she or he works in a job requiring equal work, skill, effort, and responsibility, under similar working conditions and within the same establishment as an employee of the opposite sex, but for less compensation.  Assuming that showing is made, an agency avoids liability by establishing that the distinction in pay is based on a reason other than sex, such as seniority, a merit system, a system by which pay is determined by quantity or quality of work, or some other differential.

In Heidi B. v. Dep’t of Health and Human Services, EEOC No. 0120152308 (June 3, 2016), the agency was unable to overcome an allegation of an EPA violation where the complainant worked as a GS-0201-12 HR Specialist and alleged she should have been paid at the GS-13 level, as a male HR Specialist was.  The agency argued that an audit revealed that the complainant “did not have the extent of independence and latitude in her classification work which would have been commensurate with performing duties at the GS-13 level of pay. Thus, the Agency argued Complainant did not establish a prima facie case under the EPA.”  The Commission disagreed, noting that audit did not compare the duties the complainant performed as compared to the identified male employee, nor did the record support that the male comparator’s job involved more responsibility. Therefore, the Commission found the complainant established a prima facie case.  The Commission then concluded that the agency failed to establish any defense to the claim.

Compare that to the result in Vaughn C. v. Dep’t of Veterans Affairs, EEOC No. 0120152918 (June 23, 2016). There, the complainant was a GS-11 Clinical Applications Coordinator (CAC) and during a conference call, became aware that a white, female CAC in another location was paid as a GS-12. The Commission did not bother to address whether the complainant established a prima facie case and assuming that he did, found that the VA established that the female comparator was required to perform additional and more complex duties, which established a factor other than sex in the salary discrepancy.

EPA claims require a clear step-by-step analysis to both bring and defend against.  During the investigation and in discovery if needed, be sure to identify the comparators, get the information about the position itself (don’t just rely on the position description), and address each element of both the prima facie claim and the affirmative defenses. Sumner@FELTG.com

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