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Gender-based salary discrimination claims, and burdens of proof
August 30, 2006 by Ross Runkel at LawMemo
Mickelson v. New York Life Insurance (10th Cir 08/28/2006) gives us a lesson on gender-based salary discrimination claims under Title VII and the Equal Pay Act (EPA).
The lesson: Different burdens of proof.
An employee claiming gender-based salary discrimination has essentially two options.
- First, the employee can proceed under a theory of intentional gender discrimination pursuant to Title VII.
- Alternatively, the employee can proceed under a wage discrimination theory pursuant to the EPA.
There are significant differences between an employee's burden of proof, depending upon which avenue she takes.
Under the Title VII intentional discrimination theory, the employee always bears the burden of proving intent. The EPA, however, has been described as imposing a form of strict liability on employers who pay males more than females for performing the same work. Thus, under the EPA, an employee need not prove discriminatory intent.
Additionally, under Title VII the McDonnell Douglas burden shifting framework is generally applied. EPA cases do not employ McDonnell Douglas, but rather proceed in two steps. First, the employee must establish a prima facie case by demonstrating that employees of the opposite sex were paid differently for performing the same work. Second, if that burden is met, the burden then shifts to the employer to prove that the wage disparity was justified by one of four permissible reasons (set forth 29 USC Section 206(d)(1)). Unlike the second step of the McDonnell Douglas framework (where the employer proffers a "legitimate non-discriminatory reason"), though, the employer's burden at this step in EPA cases is one of persuasion.
The 3rd Circuit has taken the position that, in order to carry its burden under Section 206(d)(1), an employer must "submit evidence from which a reasonable factfinder could conclude not merely that the employer's proffered reasons could explain the wage disparity, but that the proffered reasons do in fact explain the wage disparity." The 10th Circuit adopted that approach, concluding that "where, as here, employers seek summary judgment as to [an] Equal Pay Act claim, they must produce sufficient evidence such that no rational jury could conclude but that the proffered reasons actually motivated the wage disparity of which the plaintiff complains."
The court noted that "[b]ecause of the varying burdens of proof, it is conceivable that in some cases an employer would be entitled to summary judgment on the Title VII claim, but not on the EPA claim." The court concluded ultimately that this was not such a case, however, because (1) Mickelson presented sufficient evidence of pretext in support of her Title VII claim; and (2) the employer failed to carry its burden under Section 206(d)(1).
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