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What is Comparable Work for Pay Equity?
Editor's Note
What is Comparable Work for Pay Equity?
We all know that pay equity is about equal pay for equal work. But what the heck is equal work?
The minute you start to think about it, you realize that's there no such thing as two jobs being the same. Even our own job isn't the same from day to day. It's easy to think that equal work means identical work because, well, it says "equal."
But equal for pay equity does not mean the same. It means equivalent. And equity in pay equity, means fair. So we're trying to understand which jobs are comparable so that it's fair that the people doing them are paid about the same too.
If you compare two tangerines, they will be slightly different sizes and weight, the colors will be a little different, and one will be easy to peel while the other will be a pain in the neck. They also won't taste exactly the same. You will have preferences and opinions about which one is better. But those are going to be equivalent tangerines for tangerine equity.
An even better metaphor is comparable houses in real estate. When appraisers look at value, they assess the location, size, condition, bedrooms, bathrooms, access to things people want like views or parks, and what other similarly sized homes in the area recently sold for. You look at the house, its context, and the market.
It's a similar analysis with comparing work. We look at the skills, effort, and responsibility and sometimes working conditions (but only when there's a notable difference between the two sets of conditions that would generally affect pay, like night shift, or exposure to hazards).
How do you compare skills, effort, and responsibility? It's tricky. There are judgment calls. But you are not limited to people who have the same job title or even the same kind of work. You're looking at work that has comparable value to the organization; it doesn't have to be the same.
Wait. Stop. I know what you're thinking. You're thinking, "Hey, let's just compare people in the same pay grade because their work has the same value." Do not do this. (Yes, bold and italic! Really, don't.) Why? Because then you would not be comparing work with pay; you would be comparing pay with pay. (Conveniently, the results always come out great, but it won't do you any good.)
We have to back up and actually look at what the work involves first.
If you are struggling to figure out where to start or what to do, there is technology that can really help and people who can help you with that technology. Have I thanked my sponsor for this newsletter lately?
- Heather Bussing
by Cassandra Brumback and Nicholas Reiter
at Venable LLP
The Equal Pay Act of 1963 (the EPA) and related state laws require employers to pay men and women equally for equal work. The premise is simple enough, but pay equity lawsuits present unique challenges for employers. Standards of proof, and specifically the standard for identifying a valid comparator, can vary depending on state law or the court's interpretation, and the variance can make it difficult for employers to anticipate and defend against pay equity claims.
A recent decision from the federal district court in the Eastern District of Pennsylvania highlights the nuance of standards of proof in pay equity litigation. In Cartee-Haring v. Central Bucks School District, the court rejected the plaintiff teacher's argument that she could prove her case by comparing all female teachers to all male teachers. The court explained that the EPA required her to identify at least one specific male comparator who performed work with equal skill, effort, and responsibility under similar working conditions. The court also concluded that a valid comparator did not need to be a teacher at all, but could be a librarian or another employee with a different title and licensing requirements, provided that the evidence showed equal job duties.
Given these complexities, employers should take steps to understand applicable pay equity law and to minimize pay discrepancies.
Pay Equity Claims 101
To establish a pay equity claim, a plaintiff must first identify a valid workplace comparator. In gender discrimination pay cases, a comparator is usually a similarly situated employee of the opposite sex with whom the plaintiff can compare their salary to determine whether they were paid equally. For example, if the plaintiff were a female accountant, an ideal comparator would be a male accountant with the same level of experience and job duties.
The plaintiff must use their chosen comparator to make an initial showing that the employer paid higher wages to the other employee, and that both employees performed work requiring equal skill, effort, and responsibility under similar working conditions.
If the plaintiff succeeds, the burden then shifts to the employer to show that the difference in pay was justified by either a seniority system, a merit system, a system which measures earnings by quantity or quality of production, or a differential based on a factor other than sex.
What Is Equal Work and Who Is Comparable?
Equal pay cases often hinge on whether the plaintiff can identify one or more comparators.
Under the federal EPA, comparators must work at the "same establishment" as the plaintiff, and they must perform work that is equal or "substantially equal." Many courts interpret this language to mean that the work performed must be virtually identical. Additionally, as explained by the court in Cartee-Haring, plaintiffs cannot broadly claim that all members of the opposite sex were paid better—they must identify at least one specific comparator.
However, the pool of possible comparators may not be as limited as employers would like. Courts determine if comparators do equal work based on actual job duties and responsibilities, not titles and labels. In Cartee-Haring, the court held that under certain circumstances, a librarian could be a valid comparator to the plaintiff teacher, despite the different titles, education, and teaching certificates.
Further, employers should note that state laws may have more expansive standards for valid comparators. For example, in Maryland and Oregon, a comparator need not do equal work, but rather "work of a comparable character." Similarly, in California, Colorado, and Illinois, comparators are those who are paid more for "substantially similar work." Some of these laws also allow the plaintiff to look beyond their "same establishment" to identify a comparator in other locations statewide.
Recommended Steps
Accordingly, employers should understand the risks and applicable standards of proof for claims under the EPA and state law. As Venable has previously indicated, a pay audit can help to identify discrepancies and minimize risk. The audit should take any applicable laws into account and expand the pay comparisons beyond positions with the same title. Finally, consistent policies for hiring and setting salaries will help employers to justify any discrepancies.
