In Little Rock, Ark., American Federation of Government Employees (AFGE) Local 2054 has been working for the past four years to earn equal pay for the female physicians at the Department of Veterans Affairs for the Central Arkansas Veterans Healthcare System. And looks like the fight is just heating up.
It all started when AFGE, the largest federal employee union, representing 700,000 workers in the federal government and the government of the District of Columbia, filed Gayle Gordon and Teresa Maxwell v. United States of America in 2014 under the Equal Pay Act. The case had been prompted by Dr. Gordon’s discovery that her husband, a physician who performs in the same role at the same facility – Department of Emergency Medicine of the Central Arkansas Veterans Healthcare System in Little Rock – was making more than her and other female doctors after he received a pay raise and the female doctors did not. What solidified the injustice was that her husband had less experience than she did. The union soon learned that other male doctors at the facility were also earning more than their female counterparts.
To prove a federal Equal Pay Act violation, an employee must show that another employee of the opposite sex performing equal work was paid more on the basis of sex. “Equal work” does not mean identical jobs, but they must be “substantially equal” as determined by job content, not jobs title. The work must be performed in the same location. If that is proven, the responsibility shifts to the employer to explain any apparent pay disparities. Employers have four options under the Equal Pay Act to justify apparent pay disparities:
A seniority-based pay system based on an employee’s tenure with an employer
A merit-based pay system based on employee performance set by criteria established by the employer
A pay system which measures earning by quantity or quality of production
A pay differential based on a factor other than sex (In some states, like California, it is increasingly harder to rely on this defense.)
In the case of Gayle Gordon and Teresa Maxwell v. United States of America , a judgment in the case issued in February 2017 found that the reasons for the “apparent” pay disparities were unclear and “essentially unexplained by the parties” in regards to the pay disparity between Gordon, Maxwell and their male-counterparts. Therefore, the doctors as employees had failed to make their case successful in the eyes of the court.
In October 2018, an appeal of that decision submitted by AFGE was reviewed by a three-judge panel for the United States Court of Appeals for the Federal Circuit. While the initial decision was upheld, one of the three judges on the panel believed that legal precedent set by Yant v. United States (requiring the plaintiffs, rather than the employer, must bear the burden of proving a pay differential between the sexes exist) was improper and “at odds” with the Equal Pay Act, Supreme Court precedent, and the law of other circuits.
“The Yant’s requirement that a plaintiff bringing suit additionally show that the complained-of difference in pay is presently or historically based on sex improperly shifts the burden from the employer to disprove discrimination to the plaintiff to prove discrimination. Such a shift is improper under the statute and at odds with Supreme Court precedent and the law of other circuits,” wrote Judge Jimmie V. Reyna in his dissenting opinion. “Yant’s requirement that an EPA plaintiff must affirmatively prove that a pay differential between employees of different sexes is historically or presently based on sex is at odds with the broadly remedial nature of the EPA to redress wage discrimination between employees of different sex. Because its holding is counter to the statutory structure, the Supreme Court’s precedent, and the law of other circuits, I urge this court to consider revisiting this precedent.”
Based on Judge Reyna’s opinion, AFGE filed a new appeal with the United States Court of Appeals for the Federal Circuit “to overturn prior case law and offer fair compensation for those female physicians under the Equal Pay Act,” according to a press release.
President of the Local 2054 American Federation of Government Employees, Barbara Whitson-Casanova stated, “This case is a cut-and-dry example of how women are unable to earn equal pay as their male colleagues… We have been fighting to correct this negligible treatment of both doctors since 2014, and I’m thrilled we’ve filed another appeal that will hopefully set a new precedent that will help women earn equal pay as men going forward nationwide in the federal government.”
This case is one of the many examples of pay inequality being litigated in the United States. Expect this type of litigation to increase as states become more assertive in passing laws and regulations to end pay discrimination. Whether the individuals subject to pay discrimination work in the entertainment industry, state administration, or tech – if there is one thing equal about pay discrimination it’s that it exists in all facets of the workplace across all industries.
Employers should become familiar with equal pay regulations to understand how it could impact their organizations. They also should consider undertaking a pay equity audit to find out where their organization stands in providing equal pay to employees. This will provide employers with a snapshot of where their organizations are in regard to providing equal pay and meeting equal pay laws, and, in some states, can be used as a safe harbor to avoid costly regulatory and legal penalties and negative press.
By taking steps to identify problematic pay disparities within their organizations, businesses can get started in the right direction.