Ringing in the New Year in Compliance with the Equal Pay Act

Welcome to the fifth and final of our business and healthcare law firm’s holiday-themed blog posts. We hope you have enjoyed this holiday season so far and have a great time ringing in the new new-years-eve-hero-300x300year tonight.  Happy 2021!

Many of our healthcare provider and healthcare business clients own their businesses and employ many individuals. Being an employer carries with it numerous statutory and regulatory obligations. As legal counsel, we often take the role of advising our healthcare employer clients on employment matters. Herein, we discuss the requirements placed on employers by the Equal Pay Act (“EPA”), which attempts to eliminate gender discrimination in pay.

At 29 U.S.C. § 206(d)(1), the EPA provides: “No employer having employees subject to any provisions of this section shall discriminate . . . between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.” To avoid violating the EPA, it is useful to analyze what must be proven if an employer is accused of violating the EPA.

Of course, discrimination is difficult to prove, so courts apply a burden-shifting framework to analyze pay discrimination claims under the EPA. Under this burden-shifting analysis, the employee has the prima facie burden of showing “that the employer paid employees of opposite genders different wages for equal work for jobs which require equal skill, effort, and responsibility, and which are performed under similar working conditions.” Steger v. Gen. Elec. Co., 318 F.3d 1066, 1077–78 (11th Cir. 2003) (internal quotation marks omitted). Here, the employee has the strict standard of showing she performed substantially similar work for less pay.  To prove this, courts look to “job content” or “the actual duties that the respective employees are called upon to perform.”  Etheridge v. Bd. of Trustees of Univ. of W. Ala., No. 7:18-CV-00905-RDP, 2020 WL 4260598, at *7 (N.D. Ala. July 24, 2020) (finding the two employees performed substantially similar jobs when “the duties and responsibilities . . . were pretty much the same”).

If the employee carries his or her burden, the burden shifts to the employer to prove its decision was made not based on sex but, instead, on one of the EPA-provided affirmative defenses: “(i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor than sex.”  29 U.S.C. § 206(d)(1).  If differences in pay are made based on one of the four defenses, the employer has not discriminated based on sex unless the employee can rebut the employer’s explanation.

The employee can show the employer’s reason for the difference in pay is “pretextual or offered as a post-event justification for a gender-based differential.  Reddy v. Dep’t of Educ., Ala., 808 F. App’x 803, 810 (11th Cir. 2020).  The employee’s burden here is difficult to carry; he or she “must produce evidence which directly establishes discrimination, or which permits a jury to reasonably disbelieve the employer’s proffered reason.”  Id.  Proving pretext requires more than “simply quarreling with the wisdom” of the employer’s proffered nondiscriminatory reason.  Chapman v. Al Transp., 229 F.3d 1012, 1030 (11th Cir. 2000) (en banc).

Our attorneys are experienced in advising healthcare employers on employment matters.  If you have healthcare staffing or other employment questions or would like to discuss this blog post, you may contact our healthcare and business law firm at (404) 685-1662 (Atlanta) or (706) 722-7886 (Augusta), or by email, info@hamillittle.com. You may also learn more about our law firm by visiting www.hamillittle.com.

*Disclaimer: Thoughts shared here do not constitute legal advice.




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