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Does a pay disparity finding mean that pay discrimination occurred?

April 11, 2019

By Anthony Kaylin, courtesy SBAM Approved Partner ASE

The hottest issue in the EEO area is pay discrimination.  In the news it is often written that women earn approximately 20 cents or more less than a male counterpart.  When it is broken down by race, the disparity grows even larger.  However, does disparity mean discrimination?

In the case of Spencer v. Virginia Tech University, Dr. Zoe Spencer, a sociology professor at Virginia State University, sued the University under the Equal Pay Act (Act) and Title VII for paying her less than two male professors, allegedly because she is a woman.   Spencer earned about $70,000 per year—a median salary when compared to the men who were also full professors in the Department of Sociology, Social Work, and Criminal Justice. While Spencer asserts that the difference in pay was due to her sex, the University provides a different explanation:  Shackleford’s and Dial’s jobs differed from Spencer’s and, as former administrators, their pay was set as a prorated portion of their previous salaries.  

At the trial court, the case was dismissed at summary judgement because the university showed that the salary in part was based on their previous role as administrators.  On appeal, the 4th Circuit Court of Appeals affirmed the judgement. 

The court stated that to prove a violation of the Act, Spencer must make an initial (i.e., prima facie) showing of three elements:  (1) the university paid higher wages to an  employee of the opposite sex who (2) performed equal work on jobs requiring equal skill,  effort, and responsibility (3) under similar working conditions.  The first element allows for a showing of disparity to build a case of discrimination.  However, the question is whether they performed equal work and under similar working conditions

The issue per the court is that similarity of work is not enough.  The job itself must be “equal,” although the conditions of work need only be “similar.”  Comparable worth is not allowed to be considered under the EPA to determine equality; the work must be equal.

Spencer argued that university professors perform equal work because they all perform the same essential tasks:  preparing syllabi and lessons, instructing students, tracking student progress, managing the classroom, providing feedback, and inputting grades.  The performance of these tasks, Spencer posits, requires the same skills:  studying, preparing, presenting, discussing, and so forth.  The court disagreed and stated that the comparison ultimately relies on the common title of “professor” plus some generalized responsibilities (e.g., teaching students).

As the court points out, professors are not interchangeable like widgets.  Various considerations influence the hiring, promotion, and compensation of different professorial jobs.  For example, an engineering professor will not likely be paid the same as an English professor.

As for the comparators Spencer identifies, the court pointed out that they both teach in different departments and at different levels of courses.  Spencer taught mostly undergraduate course and the others taught mostly graduate courses.  Further, the professors did not work equal hours, as the record shows that Shackleford and Dial worked more than Spencer did week to week.  Finally, the fact that there appears at first blush a general pay disparity at the school, the court gave it little weight.

Finally, the court found that the university established that the salary difference was based on a “factor other than sex.”  There was no dispute that the wage difference at issue resulted from the university setting Shackleford’s and Dial’s pay at 75% of their previous salaries as administrators.  In practice, the university generally paid former administrators who became professors “9/12ths” of their administrator salary.  This practice appears to rest on the theory that professors work nine months out of the year, while administrators work year-round.  Therefore, Spencer lost on this issue.

Under Title VII per the court, it requires the compared jobs to be only “similar” rather than “equal,” as required under the Equal Pay Act.  While there is no bright-line rule for what makes two jobs “similar” under Title VII, courts consider “whether the employees (1) held the same job description, (2) were subject to the same standards, (3) were subordinate to the same supervisor, and (4) had comparable experience, education, and other qualifications—provided the employer considered these latter factors in making the personnel decision.” 

As the university showed that the 9/12 rule was a factor other than sex, it also served a legitimate nondiscriminatory reason under Title VII for the pay disparity.  Spencer provided no evidence once this rule was shown as a nondiscriminatory practice to show it was pretextual.  Therefore, she lost on the Title VII claim as well.

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