When a Woman is Paid Less Than a Man

Equal Pay
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Equal Pay Act (EPA)

What should you do about getting paid less for the same work?

It is old news that women are often paid less than men for similar work. Though this is not an issue that only caregivers face, it certainly affects caregivers, given that the majority of them are women. So, when are pay disparities illegal?

It is unlawful for a company to pay a woman less than a man for similar work when the company does not have a legitimate reason for doing so. That’s what happened to Linda Lovell. Ms. Lovell was an accomplished woman with an undergraduate degree in textile chemistry and a master’s in business administration. After gaining significant work experience, Lovell joined a subsidiary of Verizon called BBNT, which provided contract research and development services to the Department of Defense. Although Ms. Lovell worked a reduced schedule of thirty hours per week, she often made herself available to clients on her day off. Ms. Lovell, the only woman in her workplace, was not rewarded for her extra effort. On the contrary, she was often taken advantage of by her male colleagues. For instance, though she would often let male counterparts perform billable work for her clients, which employees had to do to be eligible for bonuses, her male counterparts did not return the favor. Worse, some of her colleagues charged matters to her clients without informing her, resulting in budget overruns. And it goes on. Ms. Lovell was the only employee in her group who did not receive a laptop computer, though she made multiple requests for one. She was also not invited to some company training sessions. For all her trouble, Ms. Lovell learned that she was paid less than her male colleagues, at least one of whom did the exact same type of work she did. In addition, in 2003, Ms. Lovell received a lower raise than her male colleagues. So, she sued. The name of her case is Lovell v. BBNT Solutions, 295 F. Supp. 2d 611 (E.D. Va. 2003). The opinion in the case was issued by Judge Thomas S. Ellis of the US District Court for the Eastern District of Virginia.

She sued under two statutes: the EPA and Title VII of the Civil Rights Act. I won’t go into all the details here. The intersection of these two laws is highly technical. If, after reading this, you believe that your employer may be paying you less than your male colleagues, go talk to a lawyer. (The law would apply equally to men: that is, it would be illegal to pay a man less than a woman for the same work just because he’s a man, but that is a rarity.) Here are some basics so that you have a sense of what to look for.

The EPA makes it unlawful for an employer to pay an employee at a rate less than that paid to employees of the opposite sex for equal work. This law is part of the FLSA, which is, in many respects, very favorable to employees because it does not require a showing that the employer intended to discriminate. You can find the text of the law at 29 U.S.C. § 206(d)(1). To bring a case for a violation of the EPA, a plaintiff must be able to show the following three factors:

1. The employer paid different wages to employees of the opposite sex. This can include someone hired to replace the terminated employee.

2. The employee holds a job that requires equal skill, effort, and responsibility.

3. The jobs are performed under similar working conditions.

When comparing jobs, the title of the job is not the deciding factor. An employee must show that a specific male—called a “comparator”—was paid at a higher rate even though they shared a common core of tasks. When comparing pay, it is generally the rate of pay, rather than a difference in the total amount of pay, that is relevant. So, a woman on a parttime basis could win an EPA claim against a fulltime male employee if she is paid at a lower hourly rate. When looking at the “equal skill” factor, a court should look at the skill required for the job, not just skills possessed by the employees. For instance, an employer could not take a male employee in a marketing department and point to his PhD in physics as justification for a higher pay rate when that degree was not required for the job.

The powerful aspect of the EPA is that, once an employee has met these factors, it is the employer’s burden to disprove that a violation has occurred, and this burden never shifts back to the employee. This is different from claims brought under anti discrimination statutes like Title VII. Also, unlike Title VII, to win an EPA claim, the employee does not have to show why the employer established the pay rate the way it did. Title VII requires an employee to show evidence of what was going on in the employer’s head, which can be difficult. This tilted playing field makes these cases easier to litigate and settle. All that is required is a review of the relevant records and perhaps a deposition or two to establish the pertinent factors. That’s not to say they are easy to win—no case is. But it does make the EPA, and other claims under the FLSA, powerful ones for employees treated wrongly.

Even if an employee shows the three factors above, an employer can win an EPA lawsuit if it can demonstrate that the difference in pay rate was based on one of the following four factors:
1. A seniority system,

2. A merit system,

3. A system that measures earnings by quantity or quality of production, or

4. A difference based on any other factor other than sex.

As you can imagine, the last one, “any other factor other than sex,” is a wideopen door. Two of the big factors that employers try to use are education/background and offering a higher starting salary to induce someone to accept an offer. The first thing to remember is that it is not enough for the employer to throw up one of these reasons and win. It must prove to the fact finder (i.e., the judge or jury) that one of these reasons justifies the disparity in rate of pay.

Education/background is particularly fertile ground for employers, given that there is almost always at least some difference in background in employees. The key to remember is that to rebut an EPA claim on this basis, an employer must prove the male employee has a combination of education and experience that is more valuable—not merely different—than the woman bringing the case. For instance, in the Lovell case discussed above, the employer argued at trial that it was justified in offering the male employee, Mr. McNamara, a higher rate of pay because he held an undergraduate degree in mechanical engineering and a master’s degree in structural engineering. Moreover, he had played a significant role in preparing multimilliondollar bid proposals for a competitor before joining BBNT. But in declining to overturn the jury award, the courtnoted evidence at trial showed that Ms. Lovell had a similar level of education, she had significant work experience prior to joining BBNT, and she had an exceptional history at BBNT, which included a proven track record of winning new business. The judge noted that the jury reasonably could have concluded that Ms. Lovell’s background was equally valuable to the company.

BBNT also argued that Mr. McNamara enjoyed a higher rate of pay because the company offered him a higher starting salary to lure him from a competitor. However—and this is an example of why deposition testimony is so important—the court noted that BBNT’s department manager had testified in his deposition that if the market was such that the company had to offer a salary premium to attract talent, it likely would have raised the salary of current employees to retain them. So, the court noted, the jury could have concluded that the hiring starting salary for Mr. McNamara did not explain the continued difference in the rate of pay. Without that admission from the company’s own witness, Ms. Lovell might well have lost this case.

Keep your eye on the defense that the employer had to offer a higher rate of pay to attract the male employee who now maintains that higher rate of pay. This defense, which is often rolled out by employers, could have the effect of making legal an unfortunate fact in the workplace. A number of studies have suggested that men sometimes receive a higher rate of pay for one primary reason: they ask for it. Women (again, as a general rule) are historically more reluctant to aggressively negotiate for a higher salary. At least one federal court has explicitly ruled that aggressive salary negotiations alone cannot be a defense to an equal protection claim: Dreves v. Hudson Group, No. 2:11cv4, 2013 U.S. Dist. LEXIS 82636 (D. Vt. June 12, 2013). In addressing the issue of salary negotiations, the court reasoned as follows:

Second, there is simply no basis for the proposition that a male comparator’s ability to negotiate a higher salary is a legitimate businessrelated justification to pay a woman less. To hold otherwise would eviscerate the federal and Vermont equal pay provisions. It would also require the Court to accept a theory that is essentially indistinguishable from the repudiated argument that employers are justified in paying men more than women because men command higher salaries in the marketplace. See Corning Glass Works v. Brennan, 417 U.S. 188, 205, 94 S. Ct. 2223, 41 L.Ed.2d 1 (1974) (“That the company took advantage of [a job market in which it could pay women less] may be understandable as a matter of economics, but its differential nevertheless became illegal once Congress enacted into law the principle of equal pay for equal work.”). Reliance on the difference in value that the market places on women and men “became illegal once Congress enacted into law the principle of equal work for equal pay.” Id. In this Court’s view, a pay disparity is no more justified when it is the result of a single negotiation than when it is the result of a marketwide phenomenon, for what is a marketplace other than an amalgamation of many negotiations? Permitting an employer to defend itself simply by showing that a disparity was the product of one negotiation with a male employee would lead to the same result: a marketplace that values the work of men and women differently.

In support, in a footnote, the court cited recent studies about gender disparity in salary negotiations:

The Court notes that there are a number of studies that suggest that gender plays a significant role in negotiation outcomes. See, e.g., Hannah Riley Bowles, Linda C. Babcock, and Kathleen McGinn, “Constraints and Triggers: Situational Mechanics of Gender in Negotiation.” 89 J. Personality & Soc. Psychol. 951 (2005). Other studies show that women and men face different social incentives when deciding whether to negotiate compensation, particularly when they must negotiate with a male supervisor or evaluator. See Bowles, Hannah Riley; Babcock, Linda; Lai, Lei, “Social Incentives for Gender Differences in the Propensity to Initiate Negotiations: Sometimes It Does Hurt to Ask,” 103 Org. Behav. & Hum. Decision Processes, 84 (2007).

Damages Under the EPA

If you win your EPA case, you can win back pay. If you were fired for raising an EPA issue while employed, you could also win front pay. If you can show that the employer “wilfully” set up a pay scale that differed based on sex, you could win liquidated damages, which generally results in a doubling of the underlying award. For instance, if you won $50,000 in back pay, liquidated damages would be another $50,000, bringing the total to $100,000. You cannot win emotional distress or punitive damages under this law.

Title VII

As is evidenced by Ms. Lovell’s case, an employer that pays a woman less than a man doing the same work may violate Title VII of the Civil Rights Act of 1964 in addition to the EPA. (These claims can be brought in the same lawsuit.) There are advantages and disadvantages to bringing a claim under Title VII. The two advantages are relaxed standards for the proper comparator and available damages.

Under the EPA, you must prove that the comparator has a job, performed under similar working conditions, that requires equal skill, effort, and responsibility. There is a fair amount of wiggle room in that definition for an employer to put up a fight. In contrast, with Title VII, you have to prove only that your job is “similar” to highe rpaying jobs occupied by males.

As for damages, under the EPA, you cannot win a claim for emotional distress or punitive damages, though this may be a wash, given that you can win liquidated damages under the EPA and not Title VII.

Here is another, less universally applicable, benefit to a Title VII claim. Unlike the EPA, in some jurisdictions, you could win a Title VII case based on the fact that a male comparator consistently received a higher raise that you did. This universe of cases would be small, limited to those cases where the pay raises differentials were consistent and stark in the differential. You could never successfully bring an EPA claim based on a differential in raises alone.

There are also significant disadvantages to a claim under Title VII versus one under the EPA. To win in a Title VII lawsuit, you must prove that your employer intended to pay you differently because of your sex. Moreover, as discussed above, you have to prove discrimination, whereas under the EPA your employer would have to prove that the difference in pay rate was based on a permissible factor.

There is also a procedural difference between Title VII and the EPA. To bring a lawsuit under Title VII, you must file a charge with the EEOC within either three hundred or 180 days, depending on where you live (crazy, I know). Only if and when (usually when) the EEOC issues a righttosue letter can you file in federal court. In contrast, with an EPA claim, you have 180 days to file a claim, but you don’t need to go to the EEOC first.

What Happened to Ms. Lovell?

Ms. Lovell teaches us a lesson about thinking through the pros and cons before beginning a lawsuit. Before proceeding, you should make a cleareyed assessment about what verdict and damages you may receive. The good news about Ms. Lovell is that she won her case before the jury on all counts. The jury found that BBNT had violated the EPA and Title VII. It awarded Ms. Lovell $400,000—$325,000 in compensatory damages and $75,000 in back pay—and $100,000 for the EPA claim. (If this verdict had stuck, Ms. Lovell could not have received a double payment for back wages, so she would not have been eligible to receive both $75,000 in back pay under Title VII and $100,000 under the EPA.) Remember that under both Title VII and the EPA, Ms. Lovell was entitled to seek all her attorney’s fees from the defendants, an amount well over $100,000. Of course, BBNT’s attorneys didn’t work on this case for free. The company likely had already paid over $250,000 just to get the case to trial. So, BBNT was initially looking at writing some very big checks.

But that never happened—at least, not all of it. After the trial, BBNT doubled down on its position and paid its attorneys another chunk of change to file a motion with the trial court asking for it to essentially disregard the jury’s verdict and enter judgment in favor of the company. (Yes, that is possible. So much for trusting juries!) If the judge was not willing to do that, the company asked for a new trial.

The good news for Ms. Lovell was that the judge ruled that there was enough evidence produced at trial for the jury to find that it paid her less than Mr. McNamara for no other reason except that she was a woman. However, the court found that there was not sufficient evidence as a matter of law to conclude that the company discriminated against her in awarding her a lower raise than Mr. McNamara. Losing on this basis was not such a big deal because the court found that she won, at least in some respect, under Title VII, so the amount of money she put in her pocket would not have been affected. But here comes the kicker. The court found that Ms. Lovell was not entitled to any of the $300,000 in compensatory damages because she did not testify concerning how she felt about being paid less than a man for the same work. As a matter of common sense, I think we can all agree that it probably felt pretty bad. But Ms. Lovell had to say that under oath at some point for a jury to award compensatory damages like pain and suffering. Because she did not do so, the court slashed the $325,000 award in compensatory damages to zero. While that certainly was tough medicine for Ms. Lovell, she likely would not have gotten all that money anyway, even if she had testified through tears about her emotional distress. In many jurisdictions, like the Eastern District of Virginia, where this case was tried, it is difficult to win big damages based on emotional distress alone, particularly when it is only the plaintiff—as opposed to a doctor or psychologist—who testifies about the distress. Called “garden variety” emotional distress claims, courts will usually allow awards of only between $15,000 and $30,000 (which is certainly still better than zero). Finally, the court looked at the back wages damages—as it was required to by law—and found that Ms. Lovell was entitled only to the difference between what she made and what Mr. McNamara was paid. The difference turned out to be $3,125. So, at the end of the day, that’s what Ms. Lovell got. Even with this win, she would have (and likely did) submit a request to the court that BBNT pay her attorney’s fees and costs. (If she had a contingency fee arrangement, she likely had not paid any attorney’s fees out of pocket.) I’m sure the court required that BBNT pay some of that amount. The problem is that there is a bunch of case law saying that an employee’s attorney can recover only for time he or she spent on those claims on which the employee won. That is clearly in question here now.

I don’t know Ms. Lovell, but I would be curious how she feels about her case now. Knowing what she does about how it turned out, would she have done it again? Surely, the financial gain of less than $4,000 was not worth the time—more than a year—that it took for the case to work its way through the system. While Ms. Lovell would not have been involved during that entire time, she had to meet with her attorney a bunch (fun!), sit through a deposition, and endure at least a couple days of trial. But, as with most things in life, the money tells only part of the story. Maybe it was worth it for her to bring her company to heel. At the end of the day, no matter the money, BBNT lost and paid its attorneys a bunch of money to do so. We also don’t know whether Ms. Lovell got any satisfaction from watching the superiors who wronged her have to sit for a deposition, under oath, in some windowless room for a number of hours (I’m just imagining the scenario). She couldn’t have gotten any of that without filing a lawsuit. Or maybe she got no benefits out of this, found the whole process disheartening, and still sends her former attorney hate mail. (Let’s hope not!)