June 2012

On June 6, the Eighth Circuit Court of Appeals decided a case that illustrates key differences between gender discrimination under the Equal Pay Act (EPA) and Title VII of the Civil Rights Act. The court’s decision in Bauer v. Curators of the University of Missouri, No. 11-2758 (8th Cir. June 6, 2012), holds lessons for employers because the EEOC is emphasizing EPA claims and they are easier for plaintiffs to win.

Although gender discrimination claims may be brought under Title VII and/or the EPA, these two laws are significantly different. Unlike Title VII, employees bringing a claim under the EPA do not have to prove that the employer intentionally discriminated against them. Instead, to show an EPA violation an employee need only show that she/he was paid differently than someone of the opposite sex for the same or substantially the same work. Once this is done the entire burden rests on the employer to prove that any differences in pay are based on “a factor or factors other than gender.”

In this particular case a jury returned a verdict in favor of the defendant employer on the plaintiff’s EPA claims. The facts at trial involved a female nurse who alleged that she was paid less than a male coworker who performed the same work under similar conditions. However, the evidence at trial showed the employer had a legitimate reason for paying the plaintiff less than her male counterpart. Consequently, the employer prevailed even though the trial court judge was determined to have incorrectly instructed the jury “[y]ou may not return a verdict for the plaintiff just because you might disagree with the defendant’s decision or believe it to be harsh or unreasonable.” The court held that once the employee showed she did similar work to her male counterpart for less pay, the burden of proof shifted to the employer to produce evidence of a legitimate, nondiscriminatory business reason for the pay differential.

This case illustrates how employees need not produce evidence that pay discrepancies between genders resulted from any intentional act or an employer’s reckless disregard for the rights of one gender over another, to succeed in an EPA claim. All an employee needs to do is prove that a pay differential exists among genders for similar work; once this burden of proof is satisfied it is up to the employer to defend itself by proving a legitimate business reason that explains the difference is not the result of gender discrimination.

If you receive a claim and are uncertain about implementing or designing a comprehensive case strategy, Wessels Sherman is here to advise you.