Dear EEOC: Not All Attorneys Are The Same

On September 29, 2014 the Second Circuit Court of Appeals, in EEOC v Port Authority of New York and New Jersey, September 29, 2014, Livingston, D) held that the EEOC failed to allege sufficient facts to state a plausible claim that female and male attorneys at the Port Authority performed “equal work” despite receiving unequal pay as the EEOC could not allege any facts supporting a comparison between the attorneys’ actual job duties, thereby precluding a reasonable inference that the attorneys performed “equal work.”

Congress passed the EPA in 1963 “to legislate out of existence a long‐held, but outmoded societal view that a man should be paid more than a woman for the same work.”  Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir. 1999).  To prove a violation of the EPA, a plaintiff must demonstrate that “[(1)] the employer pays different wages to employees of the opposite sex; [(2)] the employees perform equal work on jobs requiring equal skill, effort, and responsibility; and [(3)] the jobs are performed under similar working conditions.”  Belfi, 191 F.3d at 135.

To satisfy this standard, a plaintiff must establish that the jobs compared entail common duties or content, and do not simply overlap in titles or classifications.  

At the pleading stage, a plausible EPA claim must include “sufficient factual matter, accepted as true” to permit “the reasonable inference” that the relevant employees’ job content was “substantially equal.”    Such factual allegations are necessary to provide “fair notice [to the defendant] of the basis for [the plaintiff’s] claims.” Yet, despite a three‐year investigation conducted with the Port Authority’s cooperation, the EEOC’s complaint and incorporated interrogatory responses relied entirely on broad generalizations drawn from job titles and divisions, and supplemented only by the unsupported assertion that all Port Authority nonsupervisory attorneys had the same job, to support its “substantially equal” work claim.  As such, the EEOC’s complaint was dismissed.

The EEOC’s argument that “all lawyers perform the same or similar function(s)” and that “most legal jobs involve the same ‘skill’ was rejected by the Court which stated that “accepting such a sweeping generalization as adequate to state a claim under the EPA might permit lawsuits against any law firm – or, conceivably, any type of employer – that does not employ a lockstep pay model.  Without more, these facts cannot be read to raise the EEOC’s “substantially equal” work claim “above the speculative level.”

Unfortunately for the Port Authority, even though they received the result they were seeking in this case, they had been cooperating with and providing the required information to the EEOC since 2007, when this matter began, stemming from a discrimination charge.  The EEOC then conducted a three year investigation into the EPA and determined in 2010 that the Port Authority violated the law.  Luckily for the Port Authority, the District Court and the 2nd Circuit disagreed and held the EEOC did not meet its burden proving any violation of the EPA occurred.   

For more information on the EEOC or any other employment law related matters, please contact Dana Perminas at 312-334-3474 or dperminas@messerstrickler.com for more information.