Employer Must Provide Reasons That Do, Not Could, Explain Pay Discrepancy Under the Equal Pay Act

The U.S. Court of Appeals for the Fourth Circuit joined the Third and Tenth Circuits in holding that an employer seeking to defend a claim under the Equal Pay Act must offer evidence that not just could, but actually does in fact, explain the pay discrepancy.

The Equal Pay Act prohibits the payment of different wages to individuals of opposite sexes for equal work on jobs requiring equal skill, effort, and responsibility, which are performed under similar working conditions, unless the employer is able to establish that the pay differential is due to one of the following: (1) a seniority system; (2) a merit system; (3) a pay system based on quantity or quality of output; or (4) a disparity based on any factor other than gender. In EEOC v. Maryland Insurance Administration, the Fourth Circuit found that the burden on the employer to make this showing is heavier than under Title VII, which only requires the employer to offer a legitimate nondiscriminatory reason for its action but not have to prove that it was in fact motivated by that reason.