Equal Pay Day 2019: A Contrary View

Dena & Darin are paid the same wages
in cat food for keeping the bed warm.

April 2, 2019, marks "Equal Pay Day," intended according to the National Committee on Pay Equity to symbolize "how far into the year women must work to earn what men earned in the previous year." Unfortunately, this milestone is grounded in a fundamental misperception or perhaps even deliberate misrepresentation -- that it accurately reflects the sex-based disparity between men's and women's pay. As explained by Claudia Goldin, a leading expert on the pay gap, most of the difference is attributable to nondiscriminatory factors, such as the choice of many women to enter professions that pay less but provide more temporal flexibility.

Last week, the House of Representatives passed the Paycheck Fairness Act, which would amend the Equal Pay Act. The bill stands almost no chance of passing the Senate and becoming law in the foreseeable future. The EPA applies to workers of the opposite sex performing the same job in the same establishment. An employer cannot pay such workers different wages unless it can show that the wage disparity is based on a factor other than sex. The Paycheck Fairness Act would, among other things, limit the circumstances under which an employer could justify a wage disparity between opposite-sex workers. An employer could no longer defend itself merely by showing that it did not discriminate against a worker because of sex and would have to show it was necessary to pay one worker more than another.

The pay gap between men and women has been highlighted recently by the lawsuit of women soccer players against the U.S. Soccer Federation. In my view, the EPA likely does not apply to such a claim of sex-based pay discrimination since the law is limited to employees who work in the same "establishment." Generally, an establishment refers to a distinct physical place of business. It can sometimes be applied more broadly. But in this case, that doesn't seem appropriate. Male and female soccer players don't compete alongside or against one another, and instead compete on separate single-sex teams. Comparing male and female soccer players is like comparing minor league and major league baseball players. 

Women soccer players have also alleged sex discrimination under Title VII of the Civil Rights Act of 1964, which is not limited to employees within the same establishment. Unlike the EPA, however, a Title VII claim generally requires evidence of discriminatory intent, and that can be hard to muster. Still, the women soccer players' pay discrimination claim may largely be tried in the court of public opinion, so appearances of fairness are what may matter most, not whether women soccer players are actually victims of sex discrimination.







This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.

Lewis v. City of Union City: Raising the Bar for Discrimination Plaintiffs (Updated 8/25/19)

In Lewis v. City of Union City, No. 15-11362 (Mar. 21, 2019) (en banc), the Eleventh Circuit has adopted a new legal standard that will likely make it much more difficult for plaintiffs to prevail in intentional discrimination cases under Title VII of the Civil Rights Act of 1964 and other EEO laws. In the view of the Eleventh Circuit, absent direct evidence, a plaintiff establishes a prima facie case of discrimination only by presenting evidence that the employer treated her worse than others outside her protected class who are similar to her in all material respects. By making the plaintiff identify from the get-go someone who is similar to her in all material respects, the plaintiff will effectively have to eliminate any good reason for treating her less favorably. In other words, she'll have to prove a negative.

The Eleventh Circuit's decision is an interpretation of the Supreme Court's 1973 decision in McDonnell Douglas v. Green, the most important decision in all of EEO law. In 1999, the Eleventh Circuit noted in Wright v. Southland Corp. that the McDonnell Douglas decision was intended to make it somewhat easier for a plaintiff alleging discrimination to prevail without having to rely solely on the "traditional" framework for establishing causation. Thus, in McDonnell Douglas, the Supreme Court held that a plaintiff can establish a prima facie case, or presumption, of discrimination. In Lewis, the Eleventh Circuit has eliminated any advantage that a plaintiff might have in relying on McDonnell Douglas, by making it much harder for a plaintiff to establish a presumption of discrimination.

Given how out of step the Lewis decision is, it may not be long for this world. Still, the Eleventh Circuit may not be alone in perceiving McDonnell Douglas as an unjustified boon to plaintiffs. Justice Gorsuch has argued that the framework it established should be abandoned. So even if the Eleventh Circuit got it wrong, some Justices may at least think that it was on the right track.


Update - 8/25/19: Although the en banc court rejected the plaintiff's claim under the McDonnell Douglas framework, the panel ruled for the plaintiff on remand under the "convincing mosaic" theory of discrimination. What's constitutes a "convincing mosaic"? The answer is that it's essentially whatever you think it is. And that's the problem, it's meaningless. Contrary to the Eleventh Circuit's view, there is no convincing mosaic theory of discrimination. The term originated in a line of cases by the Seventh Circuit, which recently clarified that "convincing mosaic" is not a legal test. Unfortunately, the Eleventh Circuit didn't get the message and made the colossal mistake of treating "convincing mosaic" as an independent framework for establishing discrimination. The en banc decision was a disaster, but the panel's remand decision is far worse. 







This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.