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TO: Equal Pay Commission Members
FROM: Glendora C. Hughes, General Counsel
Erika Gilliam, Law Clerk
DATE: March 8, 2006
SUBJECT: Equal Pay Act: Overview of Commencing a Claim;
and Recent Maryland and Supreme Court Holdings
I. EQUAL PAY ACT OVERVIEW
The Equal Pay Act (hereinafter "EPA") was passed on June 10,
1964 and became effective on June 11, 1964. EPA provides
protection against wage discrimination on the basis of sex.
EPA prohibits employers from unequally paying "wages to
employees of the opposite sex . . . 'for equal work on jobs
the performance of which requires equal skill, effort and
responsibility, and which are performed under similar working conditions."
A. PLAINTIFF'S/EMPLOYEE'S CASE
When establishing an EPA claim, the plaintiff (hereinafter "employee")
has the ultimate burden of persuasion and has the burden
of production to establish a prima facie case. Employee
need not show intentional discrimination , however, the
employee must create a presumption of discrimination by
proving three elements needed to establish a prima facie case:
(1) employer pays different wages to employees of the opposite sexes;
(2) employees of the opposite sex hold jobs that require equal skill, effort and responsibility; and
(3) jobs are performed under similar working conditions.
Courts have explained the different methods of proving each EPA
element. For example, an employee may establish a prima
facie case simply through successive employment by establishing
that her successor made higher wages. However, if employee
is unable to produce a salary comparison because no opposite
sex was employed in a similar position at a higher wage
rate, an employee cannot set forth an EPA claim. While traditionally,
employees prove that working conditions were "virtually
identical," for the second element, the employee cannot
claim that their assigned duties plus additional voluntary
duties constituted similar working conditions to that of
another employee. Also, an employee also cannot establish
similar working conditions on job titles alone. For the
third prong of EPA, courts have rejected that similar title
combined with similar generalized responsibilities are equivalent
to equal skills and responsibilities. In addition, one cannot
compare all positions held by other gender department heads
to the department heads of the opposite sex. Instead comparisons
must made on a case-by-case basis. However, jobs that have
the same general responsibilities are considered unequal
"if the more highly paid job involves additional tasks which
(1) require extra effort . . . (2) consume a significant
amount of time . . . and (3) are of an economic value commensurate
with the pay differential."
B. DEFENDANT'S/EMPLOYER'S CASE
If the employee is able to establish a prima facie case by
proving the elements of EPA, the burden shifts to the defendant
[hereinafter "employer"]. The employer then has the burden
of production, by preponderance of the evidence, to produce
credible evidence supporting one of the statutory affirmative
defenses to justify the wage discrepancy. The affirmative
defenses are: (1) seniority system; (2) the merit system;
(3) production system, which measures earnings by quantity
or the quality of production; and (4) a system based on factors other than sex.
Throughout a number of cases, courts have further defined and accepted
specific nuances of each affirmative defense. For example,
the 4th Circuit made clear that if an employee has a seniority
system, the system does not have to be recorded; however,
employees must be aware of the system's existence.
The 4th Circuit also addressed aspects of the merit system in
Equal Opportunity Commission v. Aetna Insurance Co. In this
case, the Secretary of Labor brought suit on behalf of an
employee under the EPA. The employer, however, was able
justify the pay disparity with the statutory affirmative
defense, the merit system. The merit system took into account
the employee's previous work experience, performance, and
current progression within the company. Ultimately, the
District Court granted summary judgment to the employer
based on the merit system and the 4th Circuit subsequently
affirmed. Similar to the seniority system, the 4th Circuit
indicated that the merit system does not have to be recorded;
however, the system must be organized and structured in
a manner where employees are systematically evaluated according
to predetermined criteria. If the merit system is not recorded,
employees must be aware of the system and the merit system
is not upon sex. Although the 4th Circuit in Equal Opportunity
Commission v. Aetna Insurance Co. acknowledged the merit
system, the Court did not specifically characterize employer's
affirmative defense as the merit system. Instead the 4th
Circuit affirmed the lower court's ruling and declined to
make a distinction. The 4th Circuit only designated employer's
justification as a "pay differential . . . not based on sex."
However 15 years later in 1995, the 4th Circuit identified the employer's
affirmative defense in Equal Opportunity Commission v. Aetna
Insurance Co. as a "factor other than sex," the fourth statutory
affirmative defense. The last affirmative defense also deemed
by the Supreme Court as a "general 'catch-all'" affirmative
defense. The 4th Circuit in Strag v. Board of Trustees simply
characterized the pay disparity justification as "factor
other than sex" because of the a difference in qualifications/experience
between the opposite sexes. Another recently accepted "factor
other than sex" defense is market demand. As what occurred
in Brinkley v. Harbour Recreation Club, the Court accepted
the employer's affirmative defense of market demand as a
"factor other than sex" since the marketplace demanded an
individual with a higher level of experience. If another
employee of the opposite sex did not possess the same experience, they would be paid a lower wage.
Although the affirmative defenses are clearly stated in both case
law and at 29 U.S.C. § 206 (d)(1), employers have attempted
to remedy EPA violations through other means and have attempted
to characterize them as a "factor other than sex." For example
in Corning Glass Works v. Brennan, Secretary of Labor, the
Supreme Court rejected pay equalization as a "factor other
than sex." In this case, the employer continued to violate
EPA by paying higher wages to the male night shift inspectors
than the female day shift inspectors. In efforts to remedy
this violation and avoid equalizing pay wages, the employer
made the night shift positions available to female inspectors.
By making these positions available, female inspectors were
able to bid for higher paying night inspection positions.
Ultimately the Supreme Court rejected pay equalization as
a "factor other than sex," because although the employer
made an effort to integrate night shift positions, the employer
still failed to adjust daytime pay disparities between the opposite sexes.
The employer may raise its affirmative defenses either in its
answer to employee's complaint or in a motion for summary
judgment. With summary judgment, since the burden is on
the movant to prove summary judgment, the facts are viewed
in favor of the opposing party. If employer fails to put
forth affirmative defenses in its answer, the employer has
not waived the right to produce affirmative defenses during
summary judgment if employee is not unfairly surprised or
prejudiced by the late notice of the affirmative defense.
C. PLAINTIFF'S/EMPLOYEE'S SUBSEQUENT CASE
When the employer produces evidence supporting their affirmative
defense, the burden of production then shifts back to the
employee who "must come forward with 'specific facts showing
that there is a genuine issue for trial.'" The employee
must produce evidence to controvert the employer's evidence
for justifying affirmative defenses. However, if the employee
is unable to produce specific facts, summary judgment as
a matter of law is granted to the employer.
D. DAMAGES
If the employer is unable to produce evidence supporting one
of the affirmative defenses or if the employee rebuts the
employer's successful affirmative defense, the employee
may be entitled to damages. The employee can be awarded
liquidated damages and/or compensatory damages. If the employer
is able to establish "that the act or omission giving rise
to such action was in good faith and that he had reasonable
grounds for believing that his act or omission was not violating
of the Act," the employee is not entitled to damages. To
establish reasonable grounds for good faith, the employer's
actions must not have been willful. Similar to what occurred
in Brinkley-Obu v. Hughes Training Inc., where the employer
decreased another employee's salary to equalize the salaries
of both sexes. If the employer's actions are not willful,
the employee is not entitled to liquidated damages.
II. MARYLAND EQUAL PAY ACT
The Maryland Equal Pay Act (hereinafter "MEPA") also "prohibits
discrimination in the payment of wages between male and
female employees in the jobs of comparable character of
work in the same establishment." While the MEPA elements
are similar to that of the EPA, the Maryland Court of Appeals
made clear that the federal EPA did not preempt the MEPA.
Yet while the MEPA prima facie elements are similar, the
exceptions that justify wage disparity are dissimilar. Instead
of three factors as in the federal EPA, there are five factors in MEPA:
(1) a seniority system that does not discriminate on the basis of sex;
(2) a merit increase system that does not discriminate on the basis of sex;
(3) jobs that require different abilities or skills
(4) jobs that require the regular performance of different duties or services; or
(5) work that is performed on different shifts or at different times of day.
Factors (4) and (5) are not reflected in the federal EPA.
A. CLAIMS UNDER THE MARYLAND EQUAL PAY ACT
Although the MEPA currently remains in effect, there have been few
cases found within the appellate system. In fact, we found
only three reported cases: Gaskins v. Marshall Craft Associates
Inc., Hassman v. Valley Motors, Inc., and Nixon v. State
of Maryland none which give insight to the MEPA. As previously
stated in Gaskins v. Marshall Craft Associates, Inc., the
federal EPA does not preempt the MEPA. In Hassman v. Valley
Motors, Inc., the employee brought an action against her
employer under both the federal EPA and MEPA. The Maryland
District Court entered judgment in favor of the employer
because the employee's duties were not similar to those
of the opposite sex. The Court deemed the employer's reason
"a legitimate, non-pretextual reason for the salary differential."
Since the Court found that the employer was unable to meet
the prima facie elements of the federal EPA, the Court stated
their findings also applied to the employee's MEPA claim.
Finally, in Nixon v. State of Maryland, although the employee
brought a claim under the MEPA, the employee relied on the
federal EPA. The Court analyzed employee's claim under MEPA.
Ultimately, the Court rejected the claim because the employee
failed to show "that her deities required equal skill, effort
and responsibility . . . [and that she] performed work of
comparable character" to that of the opposite sex.
B. CONCLUSION
It appears that most employees are either unaware of MEPA,
are using the federal EPA to file a claim, or are mistakenly
filing a claim under MEPA but are establishing a prima facie
case under federal EPA elements. In addition, the lack of
appellate case law can probably be attributed to the lack of claims filed under the MEPA.
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