Pick Your Procedure: EEOC Launches Parallel Gender Discrimination Pay Suits Under Different Statutes

The EEOC has been no stranger to headlines in recent months, particularly on the issue of equal pay. As we recently reported, the EEOC’s long-dormant pay data collection rule, revived by the D.C. District Court in March, has caused an uproar of speculation as employers race to comply with increased data reporting requirements for their annual EEO-1 forms by September 30, 2019. But the EEOC is also busy addressing pay issues in court.

Earlier this month, the EEOC filed two gender-based compensation suits in Maryland district court. The first case, EEOC v. Asset Strategies International, Inc., is on behalf of a single female employee at a Rockville, Maryland-based asset dealer who claimed that, as a manager, she was paid less than her male subordinates in violation of the Equal Pay Act (EPA). The second case, EEOC v. Davis & Davis Enterprise, Inc., is on behalf of a class of eleven female security guards who claim they were paid less than male counterparts at a Baltimore-based security company in violation of Title VII of the Civil Rights Act, and also assert claims under the Equal Pay Act. Both cases include similar claims about pay inequalities between female employees and their male counterparts, yet the differences in the factual allegations pled and the federal statutes on which their claims are based present an interesting case study in the differences between compensation claims brought under the EPA and Title VII.

To prevail in Asset Strategies, the EEOC must show that the asset dealer paid at least one male more wages than the female employee at issue for substantially equal work, which means work requiring substantially equal skill, effort, and responsibility, and performed under similar working conditions. If the EEOC makes that showing, the burden will shift to the employer to justify the differential based on one of the EPA’s four affirmative defenses ((i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex).  In a departure from the typical fact pattern in cases brought under the EPA, the claim here alleges that a female manager was paid less than two male employees she supervised, who the EEOC claims performed “equal or less demanding work under similar working conditions” (emphasis added).  Importantly, the EPA does not require the plaintiff to establish an employer’s discriminatory intent.

In Davis & Davis, the EEOC bears a different burden, both because it brings this case on behalf of a class of females, and because it brings claims under both the EPA and Title VII.  For example, to sustain its claim of class wide discrimination under Title VII, the EEOC will need to prove the employer engaged in a pattern or practice of intentional discrimination against the female class members.  Even if EEOC makes that showing, the employer can still defeat the EEOC’s claim by showing any pay differentials were based on one of the EPA’s four affirmative defenses, which were incorporated into Title VII pursuant to the Bennett Amendment.

Notably, if the Davis & Davis case were brought by private plaintiffs, a court would need to certify the Title VII class under Federal Rule of Civil Procedure 23 before it could proceed, and the EPA claim would proceed as an FLSA collection action. Because the EEOC is the plaintiff, however, it has authority to seek relief for groups of individuals without the stringent requirements of Rule 23 (including numerosity, commonality, typicality, and adequacy of class representatives).  See General Tel. Co. of the Northwest, Inc. v. EEOC, 446 U.S. 318, 324 (1980).

Stay tuned as we track further developments on this blog.