Equal Pay for Equal Work -- It's ALREADY the Law (and has been for 50+ years)

Sometimes in the heat of a political campaign year slogans and promises take root that seem to forget reality.  One that has become quite popular in recent years is the suggestion that legal reform is needed in order to ensure women equal pay for equal work.  Because the premise seems so fundamentally fair and noble, the media has adopted this rallying cry as well.

The only problem is that we have had a federal law requiring this very thing for over fifty years.  Called, logically enough, the Equal Pay Act of 1963, it has been the subject of a previous post here. Here are some of the remarks made by President Kennedy upon signing the legislation:

I AM delighted today to approve the Equal Pay Act of 1963, which prohibits arbitrary discrimination against women in the payment of wages. This act represents many years of effort by labor, management, and several private organizations unassociated with labor or management, to call attention to the unconscionable practice of paying female employees less wages than male employees for the same job.

In short, it has long been the law in all fifty states that an employer cannot discriminate on the basis of gender in setting pay rates.  Not only does the EPA forbid this, Title VII of the Civil Rights Act of 1964 does as well.

So why the confusion?  And why aren't all women paid the exact same as male counterparts?  Because the EPA does not eliminate the employer's ability to consider distinguishing credentials, skills, job performance, or other bona fide business considerations is setting a given employee's pay.  Employers can still pay more for more advanced degrees, more valuable experience, greater business contacts, or other legitimately distinguishing credentials.  Similarly, employers can still pay lower performing employees less.  As such, if an employee has poor attendance, is chronically late to work, is prone to poor work product, the employer can, and arguably should, pay less than better performing peers.  But if a woman is paid less than a man for the same work and in the absence of any bona fide business reason, she can sue the employer for the difference in pay and attorney's fees.  In fact, in the case of a willful violation, the underpaid employee can collect liquidated damages as well.

Furthermore, an employer's mere offering of a purported justification for lower pay does not set the employer free.  The employee can still offer evidence to show that the justification is a pretext, or phony excuse, for the disparity.

In short, and at the risk of diluting a good campaign rallying cry, equal pay for equal work is already the law of the land.

U.S. Justice Department Files Sexual Harassment Lawsuit Against Scotland County Agency and Employees

Earlier this month the United Sates Justice Department filed a sexual harassment lawsuit against Southeastern Community and Family Services, Inc., which is a public housing agency that administers the federal Section 8 voucher program in Scotland County.  The complaint, copied here, also names as defendants John Wesley, the Section 8 housing coordinator, and Eric Pender, a housing inspector. 

Generally, the complaint alleges that Wesley and Pender subjected voucher program participants and applicants to unwanted sexual comments, sexual touching and other sexual acts, and even conditioned or offered Section 8 benefits in exchange for sexual acts.  The complaint also alleges that the men punished women who rebuffed their sexual advances by taking adverse housing actions against them.  The claims are pursued under both Title VII of the Civil Rights Act of 1964 and the Fair Housing Act.

According to the complaint, Wesley's harassment dates back to the year 2000 and includes such acts as making unwelcome comments and sexual advances to applicants, touching applicants and himself (in their presence) in a sexual manner, and even exposing his genitals in the presence of Section 8 applicants and participants.  He is also alleged to have used the women's responses to his sexual advances as a basis for advancing or hindering applications for benefits.  Similar misconduct is alleged against Pender.  In these ways the complaint alleges sexual harassment of both the hostile work environment and quid pro quo varieties, albeit outside of the employer-employee relationship.

The action is notable in several respects.  First, it serves as a reminder of the kinds of comments and actions that frequently lead to sexual harassment litigation.  In addition, it confirms that sexual harassment presents a liability risk for employers not only as to employee victims, but also as to third-parties who are affected by the misconduct. The case also serves as a reminder that governmental entities are not immune from liability for sexual harassment.  Finally, we see that sexual harassment is prohibited not only by Title VII but by other federal laws prohibiting discrimination and that federal agencies other than the EEOC enforce the prohibition against sexual harassment.

Fourth Circuit Affirms Jury Verdict in Racial Harassment and Retaliation Action Despite Erroneous Causation Instruction

In E.E.O.C. v. A.C. Widenhouse, Inc. (06/24/2014), the Fourth Circuit Court of Appeals affirmed a substantial plaintiffs’ jury verdict in a case featuring claims of a racially hostile work environment, racially discriminatory discharge, and retaliatory discharge.  The lawsuit was brought first by the United States Equal Employment Commission (“EEOC”) on behalf of two black employees, and also included additional claims brought by Contonious Gill, one of the affected employees, after he intervened in the action.

Gill had worked for A.C. Widenhouse as a truck driver from May of 2007 until his termination in June of 2008.  During his employment, Gill was subjected to racial epithets, which included use of the “N” word and the term “porch monkey.”  He also heard racially charged jokes and witnessed displays of objects such as nooses and confederate flags.  Gill testified that he repeatedly reported these incidents to superiors, who did nothing to remedy the problem.  Gill was terminated in June of 2008 when he was unable to complete a delivery due to illness.  Gill alleged that the termination was due to racial discrimination as well as retaliation for his reporting the harassment.

The jury found Widenhouse liable on each claim and awarded Gill $105,000.00 in damages.  The judge, in turn, awarded Gill an additional $88,509 in back pay and prejudgment interest. The judge also ordered Widenhouse to pay $139,000 in attorneys’ fees and costs.

In its appeal to the Fourth Circuit Court of Appeals, Widenhouse contended that the trial court erred by instructing the jury on the law applicable to the claim of retaliation.  On this point, the trial judge instructed the jury that it should find Widenhouse liable for violating Title VII's retaliation prohibition if the jury found that retaliation for Gill's protected activity of reporting racial discrimination was a motivating factor in his termination.  This instruction was contrary to recent United States Supreme Court precedent holding that a retaliation plaintiff must prove that the plaintiff’s protected conduct (here, Gill’s complaints of harassment) must have been the “but-for” cause of the retaliatory action.  

While acknowledging the erroneous instruction, the Court of Appeals nevertheless affirmed the verdict because Widenhouse failed to show that the erroneous instruction affected the outcome of the retaliation claim.  In its analysis on this point, the Court found significant the jury’s verdict sheet, which noted the jury’s finding that the termination was “because of” his opposition to unlawful harassment.  The Court also found that the jury’s finding of liability for the same conduct under a companion Section 1981 federal law theory to demonstrate further a lack of prejudice from the erroneous instruction.

In affirming the jury verdict despite the erroneous jury instruction, the opinion also demonstrates that the Supreme Court’s recent pronouncement of a “but-for” causation requirement really is not the significant change in the law that employers initially believed.  Other recent cases decided by other courts have previously noted that there can be more than one “but-for” cause, and the opinion here seems to confirm the point.  Other commentators have discussed how the traditional analytical framework for retaliation claims appears to have been altered little by the distinction between “motivating factor” and “but-for” causation. We tend to agree that the but-for causation requirement is unlikely to dramatically alter the danger presented by retaliation claims when termination decisions closely follow an employee’s complaints of work place discrimination or harassment.

The Equal Pay Act Turns 50 - So What Does It Add Anyway?

Last month, the Equal Pay Act, a powerful if somewhat overlooked federal employment discrimination law, turned 50 years old.  Many employers and employees mistakenly believe that the Equal Pay Act (“EPA”) provides identical, redundant protection to that provided by the Civil Rights Act of 1964, the much more widely applied legislation known as Title VII.  In fact, the Equal Pay Act provides additional protections that are often times overlooked in the employment arena.

First, the Equal Pay Act does not require an aggrieved employee to file a charge of discrimination with the EEOC.  Therefore, an employee who has missed the relatively short deadline within which to file a charge of discrimination can still pursue a lawsuit under the EPA.  The statute of limitations under the EPA is two years.  The limitations period actually expands to three years in cases of willful employer violations.

Also unlike Title VII, the Equal Pay Act does not limit its reach to employers of at least 15 employees.  Consequently, small employers who escape regulation by Title VII can still be sued for pay discrimination under the EPA.

Like Title VII, the Equal Pay Act enables a prevailing employee to recover his or her attorney’s fees.  In addition, the EPA allows employees to obtain liquidated damages, which is an amount equal to the back pay awarded for the Equal Pay Act violation.  Although the EPA does not allow for punitive damages per se, the liquidated damages award essentially serves a punitive purpose.

Perhaps the greatest distinction between the two statutes is that an aggrieved employee is not required to prove discriminatory intent under the Equal Pay Act.  Instead, an employee need only prove that he or she received lower pay for substantially equal work as members of the opposite gender.  To some extent, this distinction makes proving an EPA claim easier.  The EPA does, however, also provide employers with certain specified defenses, such as merit and seniority systems and systems under which pay is determined by quantity or quality of production.

Even after fifty years under the Equal Pay Act, wage disparities remain commonplace.  Determining whether such a disparity constitutes a violation of the Equal Pay Act and/or Title VII can be a difficult and deceptive task requiring experienced counsel. 

Protection from Pregnancy Discrimination Expands as Fifth Circuit Court of Appeals Determines Lactation Discrimination is Unlawful Sex Discrimination

In a recent opinion, the Fifth Circuit Court of Appeals has ruled that an employer’s decision to terminate a woman because she is lactating or expressing milk constitutes an actionable form of sex discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”).

The case, EEOC v. Houston Funding, II, involved a mother who, in December of 2008, took leave from work for the birth of her child.   Before returning to work, the mother advised her supervisor that she was breastfeeding and asked whether it would be possible for her to use a breast pump at work.  The supervisor, in turn, posed the question to Harry Cagle, the company’s Limited Partner.  Mr. Cagle responded with, “No.  Maybe she needs to stay home longer.”

On February 17, 2009, the employee called Mr. Cagle to report that she had been medically cleared to return to work.  During this same conversation, she again mentioned that she was lactating and asked whether she could use a back room to pump milk.  According to the employee, Mr. Cagle paused at length before responding that her position had been filled.  On February 20, 2009, the company mailed a letter, dated February 16, 2009, to the employee stating that she had been terminated for abandoning her job.

The EEOC filed a Title VII lawsuit against Houston Funding alleging that it had discriminated against the employee, based on her sex, including her pregnancy and childbirth, by terminating her employment.  Houston Funding moved for summary judgment on grounds that Title VII does not prohibit “breast pump discrimination.”  The District Court for the Southern District of Texas granted the motion, finding that firing a person because of lactation or breast pumping is not sex discrimination.

The Fifth Circuit Court of Appeals reversed the District Court.  In so doing, the Court pointed to the Pregnancy Discrimination Act, which amended Title VII to make clear that sex discrimination includes “pregnancy, childbirth, or related medical conditions.”  The Court then concluded that lactation is a medical condition related to childbirth.  The Court also held that terminating a woman because she is lactating or expressing milk states a cognizable Title VII cause of action.  Without detailed discussion, the Court additionally concluded that ample evidence had been produced for finding the employer’s offered reason for the termination pretextual.  Consequently, the lower court ruling was vacated and the case remanded to the District Court.

The ruling sends a clear message that protection from pregnancy discrimination expands beyond the period of pregnancy and childbirth.  Women are equally protected from discrimination on the basis of medical conditions related to childbirth.

Finally, it should be noted that the Patient Protection and Affordable Care Act (“PPACA”), which was signed into law on March 23, 2010, added still additional statutory protections to breastfeeding mothers.  It did so by amending the Fair Labor Standards Act to require covered employers to provide “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk.”  Consequently, an employer who discriminates against a woman for expressing milk in the workplace today would face potential exposure under both the FLSA and Title VII.

As the above case law and statutory developments reflect, pregnancy and its aftermath continue to present significant legal issues in the workplace.  If you are confronting uncertainty with respect to legal rights and/or obligations arising from a current or recent pregnancy, you should contact experienced legal counsel for assistance.

Fourth Circuit Finds Plaintiff’s Allegations of Sexual Harrassment Sufficient to State a Claim for Relief

On December 1, 2012, in the case of Sheila Davis v. City of Charlottesville School Board, the Fourth Circuit Court of Appeals (the Circuit with jurisdiction over North Carolina's federal courts) vacated a District Court’s dismissal of a sexual harassment complaint filed by Sheila Davis against the City of Charlottesville School Board.  Presently, only the slip opinion is available; click here to view the slip opinion.

As the opinion explains, in order to establish a claim for coworker sexual harassment under federal law, a plaintiff must demonstrate that the conduct was unwelcome, that it was based on gender, that it “was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment,” and that it is “imputable to her employer.” See, e.g., Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 331 (4th Cir. 2003).

Ms. Davis alleged that she was the subject of an attempted sexual assault by a coworker and that she immediately reported the incident to a supervisor. She alleged that she then suffered an unwanted intimate touching by the same coworker the very next day. The district court concluded that Ms. Davis had not alleged any facts that would entitle her to relief and dismissed her complaint. The Fourth Circuit disagreed. It found that the facts alleged by Davis, including the physical nature of the harassment, stated a plausible claim that the assault was “sufficiently severe or pervasive” to survive dismissal. Furthermore, the Fourth Circuit held that Ms. Davis sufficiently alleged facts that could demonstrate liability on behalf of her employer, since she immediately reported the harassment and the harassment occurred again thereafter.

In sum, the Fourth Circuit held that Ms. Davis’s original complaint was sufficient to state a plausible claim for relief, and the district court’s judgment was reversed and remanded. The opinion is notable inasmuch as it confirms that even misconduct that is limited in frequency can suffice to establish a sexual harassment claim when the conduct is severe in nature.

The Davis case reaffirms the difficulties posed by allegations of workplace sexual misconduct.  Even in traditionally conservative federal circuits, when sexual misconduct is alleged to have recurred after reporting, such cases will almost surely reach a jury for final determination. If you are confronting issues of work place harassment, it is important to speak with experienced North Carolina employment lawyers. Please feel free to contact me directly at (336) 333-6375 to discuss the case or other North Carolina employment law matters.  For more information about my Greensboro law firm of Sharpless & Stavola, please visit our website at www.sharpless-stavola.com.