'Virtually identical' job duties needed for equal pay claim

Wheatley v. Wicomico County, 4th Cir., No. 03-2406, Nov. 22, 2004.

Two female employees who held the same job titles, but fewer responsibilities than higher-paid male counterparts, failed to show that they performed equal work, and could not recover back pay under the Equal Pay Act, held the 4th U.S. Circuit Court of Appeals.

Sandy Wheatley and Jane Grogan supervised the emergency 911 center for Wicomico County, Md., with Wheatley serving as director of the Emergency Services Department and Grogan the deputy director.

In 1999, the county commissioned a study of its pay structure for all departments, including emergency services. Although Wheatley and Grogan got a pay increase as a result of this study, they received a smaller increase than directors and deputy directors of other county departments, most of whom were male.

Among other claims, Wheatley and Grogan filed suit under the Equal Pay Act, claiming they should be paid the same as their male counterparts in other departments.

To make a viable claim under the Equal Pay Act, the female employee must show that the skill, effort and responsibility required of her job are equal to those of a higher-paid male employee. At trial, the two female employees pointed to their job titles, which were the same as the other department heads, and relied on evidence that all county department heads performed the same general functions, such as preparing budgets, monitoring employees and conducting meetings.

The trial court ruled against the female employees. On appeal, the 4th Circuit agreed that the Equal Pay Act uses the word "equal," not the word "comparable," to show that the jobs in question should be "virtually identical." That jobs are similar, such as in this case, is not enough for a violation of the Equal Pay Act.

Different departments within the county performed completely different functions, and the qualifications needed to become a department head varied widely from department to department, the court noted. For instance, the director of the county's Department of Public Works was required to be an engineer, which neither Wheatley nor Grogan were.

RELATED ARTICLE: Professional Pointer

The 4th Circuit requires a very specific job comparison. This heavy burden on the employee is likely to make successful Equal Pay Act cases even less common than they already are--at least within that jurisdiction. While not as common as discrimination and harassment cases in today's workplace, Equal Pay Act claims can involve much greater potential for significant financial exposure because victims can span a whole gender class. Note, however, that the Equal Pay Act covers only pay disparities based on gender, not those based on race or any other traditionally protected class.

BY DECLAN C. LEONARD, AN ATTORNEY WITH THE LAW FIRM OF ALBO & OBLON IN ARLINGTON, VA.

EDITOR'S NOTE: THESE ARTICLES SHOULD NOT BE CONSTRUED AS LEGAL ADVICE.

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