by Art Gutman Ph.D., Professor, Florida Institute of Technology

The case is EEOC v. Port Authority of N.Y. & N.J. decided on 5/17/12 (see  The case began in 2007 when a female attorney alleged that she was paid a lower salary than comparably situated men in the law department at the Port Authority.  After a three-year investigation, the EEOC determined that the EPA was violated and filed the lawsuit after the Port Authority refused to engage in conciliation efforts.  In its filing, the EEOC alleged that a class of 14 non-supervisory female attorney were paid less than male comparators despite being equal in skill, effort, responsibility, and working conditions.  The strongest part of the claim was that the males and females had the same job code and were substantially equal in experience and length of service.  Nevertheless, District Court Judge Naomi Reice Buchwald dismissed the case, ruling that it was "clearly insufficiently pleaded.”  Her main ruling, on the issue of experience and length of service, was that:

The only remotely substantive allegations are that the relevant attorneys “have substantially similar lengths of service and experience” and “hav[e] the same job code.” (Id. ¶ 10(b), (c).) These allegations do not speak at all to the effort or responsibility required of the jobs, and they mention the requisite skill only cursorily. Without more, they are insufficient to meet the plausibility and fair notice standard. See Goodman, 716 F. Supp. 2d at 261 (“[M]ere conclusory statements and recitations of the elements of a cause of action will not satisfy the plausibility standard.”).

Judge Buchwald ruled further that the EEOC’s claim rested on a “bald assertion” of pay discrimination without any analysis of job content and without considering the “facts as a whole”, including “a multitude of legitimate factors.”  Thus, in her opinion, the allegations “simply do not rise to the requisite level of facial plausibility.”

This ruling points to an important difference between wage disparity cases in the EPA as compared to Title VII.  Had the original charge been made under Title VII, there was, in my opinion, sufficient evidence to force the Port Authority to at least cite (i.e., articulate without having to prove) what the “legitimate factors” are, allowing the EEOC to then prove that they are pretext for discrimination.  In comparison, under EPA rules, there is an initial burden on the plaintiff to prove there is unequal pay despite substantial equality in skill, effort, responsibility and working conditions.  If the plaintiff succeeds, the defendant must use any of four statutory defenses, the most common of which is termed FOS (legitimate factors other than sex).  The other less frequently used defenses are differences related to seniority, merit, and quantity or quality of production.

The key point is that the Port Authority was not forced to even cite what the “multitude of legitimate factors” are because Judge Buchwald deemed that the EEOC failed to prove there was unequal pay in the face of substantial equality in skill, effort, responsibility and working conditions. 

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