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I’m being paid less than my opposite-sex peer(s). Do I have an Equal Pay Act claim?

The Equal Pay Act requires that men and women in the same workplace be given equal pay for equal work. The jobs need not be identical, but they must be substantially equal.

In this blog, we will review what the Equal Pay Act means and how it could relate to you.

What does substantially equal mean?

In Parker v. Arizona, 2013 WL 3286414 (D. Ariz. 2013), the court outlined the two-step inquiry for substantial equality. First, the employee alleging unequal pay must show that the jobs being compared “have a common core of tasks.” If this can be shown, “the court must then determine whether any additional tasks, incumbent on one job but not the other, make the two jobs substantially different.” Id.

Minor differences are not fatal to an employee’s equal pay claim when the court determines whether any additional tasks required for one job but not the other make the two jobs substantially different. Allender v. University of Portland, 689 F. Supp. 2d 1279, 1285 (D. Or. 2010) (“minor differences in responsibility do not make the equal pay standard inapplicable.”). Further, the tasks must occupy the majority of the employee’s time. Hollowell v. Kaiser Foundation Health Plan of the Northwest, 705 Fed. Appx. 501, 504-05 (9th Cir. 2017) (“[P]otential comparators that employee identified spent little time performing the tasks that occupied the majority of employee's time and spent most of their time performing tasks for which employee was not trained and which he did not perform.”).

Other factors a court considers in its substantially equal analysis.

In Bell v. VF Jeanswear LP, 2016 WL 3548760* at 10 (D. Ariz. June 30, 2016), the court applied precedent established in Forsberg v. Pacific Northwest Bell Tel. Co., 840 F.2d 1409 (9th Cir. 1988). In Forsberg, the court found that [j]obs are considered "equal" if "their performance requires equal skill, effort, and responsibility and they are performed under similar working conditions." In Bell, the court considered a variety of factors and evidence when examining skill, effort, pay, and working conditions. Specifically, the Bell court identified factors such as title, the account on which the employees worked, commonality of roles within a particular department and other departments, and equal partnership.

Are job titles relevant?

The Bell court said that the title “lead” is not enough to distinguish one employee from another. However, in Negley v. Judicial Council of California, 458 Fed. Appx. 682, 684 (9th Cir. 2011), the Ninth Circuit did not find substantial equality between the plaintiff female employee's position as a Labor Relations Negotiator and a male employee's position as a Senior Labor Relations Negotiator. Specifically, the “male employee's position was supervisory and entailed significant responsibilities beyond those required of the female employee's position, as the male employee was the lead over a group of at least four other employees and was responsible for business development activities as part of his position.

When courts examine an employee's job duties, the actual job duties, as opposed to the title, is determinative. Allender v. University of Portland, 689 F. Supp. 2d 1279, 1285 (D. Or. 2010) (“When determining whether plaintiff has established that his or her job is substantially equal to the jobs performed by members of the opposite sex as required for prima facie Equal Pay Act claim, it is actual job performance requirements, rather than job classifications or titles, that is determinative.”)


If you believe that you are being paid less than an employee of the opposite sex and are performing substantially equal work as that employee, contact our firm to speak with an employment attorney today.


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