What’s a “Factor Other Than Sex” in Equal Pay Act Claims?
By Deryn Sumner, November 15, 2017
As we’ve discussed previously in this space, if an employee establishes a prima facie claim of sex discrimination under the Equal Pay Act, the agency can assert a defense by pointing to a factor “other than sex” that explains the difference in pay. The agency was able to successfully make such an argument in Willa B. v. Department of Veterans Affairs, EEOC Appeal No. 0120152792 (October 26, 2017). Ms Willa B. worked as a staff psychiatrist and filed an EEO complaint raising 14 issues and alleging race, national origin, color, disability, and sex discrimination, as well as retaliation for prior EEO activity. For purposes of this discussion, we’ll just focus on her claim that she was denied equal pay for performing the duties of a GS-15 position, while her counterparts were paid at a higher salary when they had less experience.
First, given the type of position the complainant held, the complainant’s salary was determined by a panel. The panel consisted of a chief, another psychiatrist, and an HR employee. The Medical Center Director had the right to approve and change the salary amounts recommended by the panel. The salary was determined in two parts: base pay and market pay. The base pay was determined by prior experience and tenure, and the market pay was determined by the market demand for a psychiatrist of similar education and experience. The psychiatrist also received performance pay, which was an annual one-time payment based on meeting certain criteria during the performance year.
The complainant alleged that she should have been paid more, pointing to two male psychiatrists whom she stated earned more money but had less experience. After holding a hearing, the Administrative Judge found that the difference between the complainant’s salary and the two identified male comparators occurred because of factors other than sex.
The first comparator employee had a higher salary because he had been working at the Medical Center for 10 years longer than the complainant. The second comparator employee had been working for the agency since 1997, while the complainant had only worked there since 2006. There was also evidence that five other psychiatrists received higher pay than the complainant, including another female psychiatrist, and that a male psychiatrist earned less pay than the complainant. The Commission agreed with the Administrative Judge’s conclusions and affirmed the finding that the agency did not violate the Equal Pay Act with regards to its compensation of the complainant. Sumner@FETLG.com