In Moten v. Broward County, Irma Moten, a black female forensic technician with the Broward County Medical Examiner's Office sued for pay discrimination under the EPA and race discrimination under Title VII on the same set of facts: the county hired a while male (Patrick Karr) at a higher hourly rate than she was receiving. The district court found for Moten on EPA, but not Title VII [2011 U.S. Dist. LEXIS 135400]. The 9th Circuit affirmed in a per curiam ruling [2012 U.S. App. LEXIS 22704] and the Supreme Court refused to review it [Writ denied 2013 U.S. LEXIS 435].
Moten’s argument, which is hardly new, is that a pay discrimination claim that wins under the EPA should also win under Title VII and that the Supreme Court should decide this issue. I think otherwise. Case law is filled with many rulings that show why an EPA victory on wage discrimination does no automatically qualify as a Title VII victory on the same issue. The reason is motive (or lack thereof).
An EPA victory requires the female plaintiff to prove she was paid less than a male comparator for work substantially equal in skill, effort, responsibility, and working conditions. The defendant must answer with one of four statutory defenses (seniority, merit, quantity and quality of work, and factors other than sex (FOS)). The outcome is dictated irrespective of motive --- the plaintiff was getting less pay for substantially equal work, and it doesn’t matter what the employer motives are. A Title VII disparate treatment victory, on the other hand, is all about motive. Given the same facts as an EPA case, there is no liability unless there is proof of intention to pay less based on race, color, religion, sex, or national origin.
In the Moten case, the county gave four reasons why Karr started with the higher hourly wage: (1) there was a pressing need to fill a vacancy; (2) it wanted to compensate for Karr’s relocation costs; (3) Karr deserved a higher salary based on his experience; and (4) the county official was unaware of Moten’s salary when Karr was offered the job. Frankly, I think the first three reasons should have been good enough for the EPA defense. Nevertheless, they certainly were sufficient to establish that there was no intention to discriminate against Irma Moten.
Brewster v. Barnes (1986) [788 F.2d 985] presents an even better example of this important distinction. Brewster was a secretary in the sheriff’s office. While there, she completed training to perform the job of correction officer and was performing correction officer work with more than 50% of her time. Therefore, she satisfied the county’s requirement for the pay and title of a correction officer. Interestingly, the sheriff nominated Brewster for correction officer on several occasions, but county officials believed, incorrectly, that she did not satisfy the 50% requirement for this job. Brewster won on the EPA claim, but not under Title VII because “the Board of Supervisors and the Compensation Board honestly believed, albeit incorrectly, that Brewster did not meet the fifty percent requirement”. In other words, the board was mistaken and could not be faulted for a motive to discriminate, but was at fault for the EPA violation.
by Art Gutman, Ph.D., Professor, Florida Institute of Technology