The Job Duties – Not the Job Title – Matter for Equal Pay Claims.

The Equal Pay Act requires equal pay for work requiring “equal skill, effort and responsibility” under “similar working conditions,” regardless of sex. Two different cases this month make the point that it is an employee’s actual responsibilities, and not just the job title, that is critical to a claim of pay discrimination under the EPA.

In Polak v. Virginia Dept. of Environmental Quality, the U.S. Court of Appeals for the Fourth Circuit rejected a female Coastal Planner’s EPA claim, finding that the male Coastal Planner had specific expertise that the female lacked and was doing different and more complex work than she was. The Fourth Circuit observed that “similarity of work is not enough”; rather, the work must be “virtually identical” or “substantially equal.” Thus, “it is generally not enough to simply show that the comparator holds the same title and the same general responsibility as the plaintiff.”

Similarly, in Pendergraft v. Board of Regents of Oklahoma Colleges, the U.S. Court of Appeals for the Tenth Circuit rejected a male coach’s EPA claim, noting that the female coach to whom he compared himself performed very different work. In contrast to the male coach’s participation in two recruitment tours, the female coach was involved in recruiting, practice, team travel, gameday preparation, and field maintenance.

These cases reinforce that actual differences in responsibilities are a legitimate reason for differential pay. But if employees are performing significantly different responsibilities, employers may wish to consider whether they should share the same job title.