Monday, October 6, 2014

EEOC loses Equal Pay Act claim against the Port Authority

The EEOC sued the Port Authority of New York under the Equal Pay Act, claiming that it was denying female attorneys equal pay. The Court of Appeals issues a resounding victory for the Port Authority, finding that the EEOC is merely arguing that "an attorney is an attorney is an attorney" without showing that Port Authority is unequally paying lawyers handing similar responsibilities.

The case is EEOC v. Port Authority of New York and New Jersey, decided on September 29. The Equal Pay Act codifies "equal pay for equal work." But EPA case are hard to win. You have to show that the men and women have similar responsibilities.The EEOC, though, did not highlight "the actual content of the work done by the dozens of attorneys either within or across practice areas at the Port Authority." Rather, the EEOC "alleged, in conclusory fashion, that all of the non-supervisory attorney jobs in the Port Authority's law department are substantially equivalent and require the same skill, effort, and responsibility."

The EEOC was not specific enough in suing Port Authority. The Court of Appeals (Livingston, Droney and Chen [D.J.]), says, "While the equal work inquiry does not demand evidence that a plaintiff's job is 'identical' to a higher-paid position, the standard is nonetheless demanding, requiring evidence that the jobs compared are 'substantially equal.'" We don't look at job classifications or titles or broad generalizations but actual job requirements and performance. The Court explains:

the EEOC alleged that the Port Authority required all of its nonsupervisory attorneys to have similar “experience, training, education, or ability,” bar admission, and the capacity to call upon “problem‐solving and analytical skills” as well as “professional judgment.” However, such bland abstractions – untethered from allegations regarding Port Authority attorneys’ actual job duties – say nothing about whether the attorneys were required to perform “substantially equal” work. Thus, the EEOC’s complaint provides no guidance as  to whether the attorneys handled complex commercial matters or minor slip‐and falls, negotiated sophisticated lease and financing arrangements or responded to employee complaints, conducted research for briefs or drafted multimillion‐dollar contracts. The EEOC asserts that such allegations are unnecessary because “all lawyers perform the same or similar function(s)” and that “most legal jobs involve the same ‘skill.’” Appellant’s Br. at 29. But accepting such a sweeping generalization as adequate to state a claim under the EPA might permit lawsuits against any law firm – or, conceivably, any type of employer – that does not employ a lockstep pay model. Without more, these facts cannot be read to raise the EEOC’s “substantially equal” work claim “above the speculative level.”
Along the way, the Court of Appeals reconciles recent Supreme Court rulings on Rule 12 pleading standards. In 2002, the Supreme Court said in the Swierkiewicz case that the federal rules do not require heightened pleading standards for employment discrimination cases, i.e., the plaintiff does not have to articulate a prima facie case in the complaint. But in 2007 and 2009, the Supreme Court said all plaintiffs (in any civil action) have to allege a plausible claim in the complaint, not merely a possible claim. We now call this Iqbal pleading, named after the 2009 case. The Court of Appeals states, "we recognize that Swierkiewicz has continuing viability, as modified by Twombly and Iqbal. Swierkiewicz held only that discrimination complaints are subject to the requirements of Rule 8, a rule now guided by the Court’s more recent holdings on the pleading standard." But, the Court adds, "we conclude that, while a discrimination complaint need not allege facts establishing each element of a prima facie case of discrimination to survive a motion to dismiss, it must at a minimum assert nonconclusory factual matter sufficient to 'nudge[] [its] claims’ ... ‘across the line from conceivable to plausible’ to proceed."

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