An Attorney is an Attorney is an Attorney? Not So Fast Says Second Circuit, Shutting Down EEOC Equal Pay Act Claim

The EEOC suffered another fatal blow to its systemic discrimination initiative on Monday when the Second Circuit held that the Commission’s Equal Pay Act (EPA) complaint against the New York Port Authority was too barebones to survive.

In this case, the EEOC claimed that the Port Authority paid its female nonsupervisory attorneys less than their male counterparts for “equal work.”  But, even after a three-year investigation, the EEOC still could not explain why the women attorneys’ roles were sufficiently similar to the men’s to justify paying them the same.  The complaint only pointed to similarities that virtually all attorneys share, like similar time pressures and deadlines, the requirement to have the same professional degree, and the need to use both “analytical” and “legal” skills.   There was no mention of the attorneys’ actual job duties, including whether the attorneys handled complex commercial matters or minor slip-and-falls, negotiated sophisticated agreements or responded to employee complaints, conducted research or drafted multimillion-dollar contracts.  The best the EEOC could do was to provide a table purporting to compare the men and women, claiming that attorneys whose dates of service were separated by no “more than ten years,” regardless of their actual experience, were sufficiently similar to deserve the same pay.

Second Circuit Judge Debra Ann Livingston, writing on behalf of the three-judge panel, was unconvinced that the EEOC’s complaint should survive.  Failing to plead any particulars was fatal to the EEOC’s case, particularly since the EEOC had more than ample time over three years to gather sufficient facts with the Port Authority’s cooperation.  And after all that time, the EEOC not only failed to allege sufficient facts, it repeatedly rejected the need to do so.

The Second Circuit’s holding is not novel or new.  The EPA has never supported a claim based on mere similarities in job classifications or titles.  Rather, as the Court noted,  job content “is the central concern of an EPA claim.”   Simply claiming “an attorney is an attorney is an attorney” is not enough.  To allow such sweeping generalizations would permit lawsuits against any employer that does not use a lockstep pay model.  Read as a whole, and with every reasonable inference drawn in the EEOC’s favor, the complaint suggested no “more than a sheer possibility” that the Port Authority violated the EPA.  The Court concluded that “[w]ithout any nonconclusory allegations supporting such a claim, the district court did not err in determining that the EEOC’s complaint was properly dismissed.”

This decision is one in a string of cases over the past two years rejecting the EEOC’s litigation approach in systemic discrimination cases.  (See our previous blog posts here and here).  The Second Circuit’s decision is also an important reaffirmation that the EPA requires a showing that male and female employees perform “substantially equal work”  as evidenced by actual job duties.  EPA claims brought by the EEOC or private plaintiffs that simply rely on broad generalizations based on job titles, codes or classifications will continue to fail.

For a broader analysis and discussion of equal pay issues see our recent publication in the ABA Labor and Employment Law Journal here.