EEOC-Initiated Litigation - 2022 Edition

39 | EEOC-Initiated Litigation: 2022 Edition © 2022 Seyfarth Shaw LLP E. Ensuring Equal Pay Protections For All Workers The EEOC’s SEP states that the agency will continue to focus on compensation systems and practices that discriminate based on sex under the Equal Pay Act (“EPA”) and Title VII. 282 Most of the litigation involving equal pay issues has revolved around sex-based discrimination. However, the EEOC stressed that it will also focus on compensation systems and practices that discriminate on any protected basis, such as race, ethnicity, age, or individuals with disabilities. 283 The EPA has often been perceived as the EEOC’s primary statutory weapon for combating sex-based pay discrimination. The EPA was enacted by Congress in 1963, one year before Title VII of the Civil Rights Act of 1964. The EPA prohibits employers from discriminating “between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which [it] pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions . . . .” 284 The EPA therefore overlaps with Title VII, which prohibits a broader range of discrimination on the basis of sex, including wage discrimination, and also prohibits wage discrimination against other protected groups. 285 The interplay between those two statutes has been the source of some interesting decisions over the past few years, including in the context of EEOC litigation. For example, in EEOC v. First Metropolitan Financial Service, Inc. , 286 the U.S. District Court for the Northern District of Mississippi had an opportunity to apply both statutes in a way that elucidated their different burdens of proof and burden-shifting schemes. In that case, the EEOC brought a class action complaint under the EPA and Title VII, alleging that a financial lending company paid female Branch Managers less than male Branch Managers. Although brought as a class action, the EEOC later informed the court that the class of aggrieved parties who had originally joined the suit had been reduced to only two females. 287 The employer argued that the two female Branch Managers did not have substantially similar responsibilities as their male Branch Manager comparators because they had been hired to manage a new branch, which had relatively few outstanding loans and therefore less responsibility compared to more established branches. 288 The court held that this argument was premised on a misapplication of the law. The court noted that “equal does not mean identical,” and that “[i]n determining whether job differences are so substantial as to make jobs unequal, it is pertinent to inquire whether and to what extent significance has been given to such differences in setting the wage levels for such jobs. ” 289 Although the male managers’ work in more established branches may have impacted their day-to-day responsibilities, the record did not show that those circumstances had any effect on the employer’s decisions regarding their pay: “the supposed high demands imposed on [comparator] did not, according to [employer’s COO’s] deposition, significantly impact [employer’s] decision to pay [comparator] a higher base salary.” 290 The court then denied the employer’s attempt to meet one of the statutory exceptions found in the EPA, finding 282 See U.S. Equal Employment Opportunity Commission Strategic Enforcement Plan FY 2017 - 2021, https://www.eeoc.gov/eeoc/plan/sep-2017.cfm. 283 Id. 284 29 U.S.C. § 206(d). The law recognizes four exceptions where such payment is made pursuant to: (1) a seniority system; (2) a merit system; (3) a system which measures earnings by quantity or quality of production; or (4) a differential based on any other factor other than sex. Id. However, an employer is prohibited from reducing the wage rate of any employee to comply with the law. Id. 285 Title VII makes it unlawful for an employer to “fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment,” or “to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee,” because of such individual's sex. See 42 U.S.C. § 2000e-2(a)(1)-(2). 286 EEOC v. First Metro. Fin. Serv., Inc. , 449 F. Supp. 3d 638 (N.D. Miss. 2020). 287 Id. at 642. 288 Id. at 644. 289 Id. (quoting 29 CFR § 1620.14(a)). 290 Id. at 644.