Showing of ‘sex-based animus’ enough for bias claim

Under the federal Equal Pay Act, employers who pay unequal wages to men and women performing jobs that require substantially equal skill, effort and responsibility under similar conditions in the same organization face legal liability.

To succeed, an aggrieved employee must provide “comparator evidence”: specific evidence that she is being paid less than a specific coworker for equal work. This can be a tough hurdle for a plaintiff to clear. But a recent decision from a federal appeals court suggests that an employee who can’t make that showing can still hold an employer responsible for pay discrimination under Title VII of the Civil Rights Act.

In that case, corporate vice president Danielle Markou claimed her employer paid her significantly less than male VPs who, like her, reported to the company’s CFO. When she complained, the CFO demoted her and allegedly said she’d have to take vacation time to leave the office for any reason at all, even to get coffee. Markou subsequently let the CFO know she was pregnant, at which point the CFO ordered an internal audit of her expense reports and emails, allegedly to dig up violations of corporate policy. A memo was also apparently placed in her file to show her performance was lagging, despite a history of positive reviews. When she refused to resign, Markou was fired.

In a federal discrimination and retaliation suit, Markou alleged pay discrimination as one of her claims. The judge tossed out the claim because she didn’t have comparator evidence to show unequal pay for equal work. (The company’s VPs apparently each had different responsibilities).

But the appellate court reversed the decision and reinstated the claim. Specifically, the court said that while the Equal Pay Act may require comparator evidence, Title VII — which forbids sex-based employment discrimination — does not.

Here, the court said, Markou’s evidence that male peers received above-market pay for their respective positions and she didn’t, paired with evidence of sexist comments by the CFO, was enough to support her claim.

This case shows that pay discrimination cases can succeed even where there is no other worker in the organization that does “equal work,” underscoring the importance of reviewing your compensation structure with an employment attorney.

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