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For Equal Pay Act Comparison, “Equal” Can Mean “Greater Than”

The Equal Pay Act of 1963 (“EPA”) bars employers from discriminating in the payment of wages between employees on the basis of their gender. The employees of different genders must be performing equal work in jobs which require “equal skill, effort, and responsibility, and which are performed under similar working conditions.”[1] In an odd set of facts, the Tenth Circuit case of Riser v. QEP Energy hinged on an unusual definition of “equal.”[2]

In that case, Riser, a female employee overseeing fleet operations, facilities management and management of construction projects saw her job split nearly in half and given to two men at higher rates of pay, one of whom she trained in her duties until she was fired. Her eventual claim under the EPA failed at the district court, falling to summary judgment in favor of the employer, QEP Energy (“QEP”), because she failed, in the court’s eyes, to establish a prima facie case of discrimination. The Tenth Circuit revived this claim in Riser, dismantling the employer’s argument for how the jobs of the male comparators are not “equal.”

equal pay equal rights for man and woman on work marked fair payment opportunities with same salary

The crux of the QEP’s argument was that Riser performed substantial additional duties in addition to the same tasks as the male comparators, thus making her job unequal to theirs. The duties of fleet management were delegated to the employee she trained, while the duties of facilities management and construction oversight were given to another. Since the two male employees were performing those duties 100% of the time, but those duties only accounted for 33% or so of Riser’s total duties, they were not, according to QEP, doing equal work. The Tenth Circuit found this argument to be “especially disingenuous.”[3] QEP basically split Riser’s job in two, giving each half to a male, both of which were paid significantly higher salaries. In other words, it took one woman to do the job of two men, yet she still didn’t make the same amount of money as either one of them, let alone both of them. This was too much for the court, reviving her claim and holding, basically, that “equal” work can also mean that the claimant was performing the work of a comparator and then some.

The main holding of the case should put employers on notice that courts will look none-too-kindly on pretextual hiring policies that show great disparities in the salary treatment of different genders. Another key point for employers is that any internal salary classification system with classes that correspond with specific job duties should be applied and reviewed objectively. In the Riser case, Riser’s classification level did not correspond to her duties, and her classification did not change as duties were added. She twice asked for a review and salary increase based on the classification system, and twice QEP denied her request. It’s not enough to establish an ostensibly objective and gender-neutral pay classification system – it must be prudently applied as well.

For more information on an employer’s responsibilities under the Equal Pay Act or other antidiscrimination laws, contact the attorneys at McBrayer, McGinnis, Leslie & Kirkland, PLLC.

Luke WingfieldLuke A. Wingfield is an associate with McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Wingfield concentrates his practice in employment law, insurance defense, litigation and administrative law. He is located in the firm’s Lexington office and can be reached at lwingfield@mmlk.com or at (859) 231-8780. 

This article is intended as a summary of federal and state law and does not constitute legal advice.

[1] 29 U.S.C. 206(d)(1)

[2] Riser v. QEP Energy, No. 14-4025 (10th Cir. January 27, 2015)

[3] Ibid. at 12

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