Proving Substantially Similar Work
There are so many different categories of unequal pay, and just as many nuances in proving substantially similar work. I’m going to be frank with you: this process can be all over the place. It is not something that can be quickly defined, which is why I want to give you specific examples to contemplate.
Let’s start with the easy cases.
Predecessors and Replacements
You find out your male predecessor or male replacement was paid more than you. You likely have a great equal pay case.
But, before you start knocking down doors, you need to find out what their duties were/are because they could be different. Company’s restructure all of the time, and you can bet that will be your employer’s argument. So, do your homework. If the duties never changed, you’re in good shape.
It’s a little more tricky if the duties change. One of my client’s was replaced by a male who then earned the same compensation as her, but he was only performing one segment of her prior work. If a male replacement is performing only one segment of your prior job, but was/is paid equal or more, that could be enough for an equal pay case.
Your employer cannot argue that they are paying you the same for that segment of work, because they would essentially be admitting to pay you “zero” for the other segments of your job. They are violating your equal pay rights, and are in an untenable position.
When Your Job Title Does Not Reflect Your Actual Responsibilities
If your comparator is someone with a higher title, then generally that position will come with a higher pay scale.
I want to make this really clear: a higher title does not always mean different responsibilities. In fact, title and responsibilities / pay are commonly misaligned. Which is why it is important to look at job duties, rather than title, when evaluating your comparators.
Here’s an Example:
Your job title states that you are a “level 2” or “mid-level” employee, but you’re actually performing the work of a “level 3” or “senior-level” employee.
Your responsibilities align with “level 3”, but you are getting paid as a “level 2” employee.
This is because typically (and this is where getting those pay scales really helps), a higher level comes with a higher pay scale.
This is a common defense from employers. They argue that my client is among the top paid employees among her job level. Yet, she is being classified at the wrong level!
She has asked to be promoted to the next level up because she’s already doing the work and is clearly qualified, yet she’s repeatedly denied. This supports a failure to promote claim as well as an equal pay claim.
If you’re performing the work of a higher job title, get the pay scales so you can confirm the pay disparity between you and the males employed in those positions.
Now Let’s Talk About the Not-So-Easy cases.
Finding “substantial similarity” is typically an extremely fact-intensive process. To compare substantial similarity in jobs, the law considers a comparison of the skill, effort, and responsibility actually required to perform the job.
While someone might possess a certain skill set greater or different than you, unless it’s actually required to perform the job, it is not considered in determining substantial similarity of work performed.
Job descriptions, titles, and classifications are not determinative. The actual job content determines the substantial similarity of jobs. Job content is crucial because it reflects the actual skills, efforts, or responsibilities required to perform the job.
I have worked on many cases where the employer referenced job descriptions to compare my client’s work with a coworker who we contended was not her true comparator. In these cases, my clients actually performed many additional tasks that never made it into the written job description that required additional skills, more effort, and more responsibility than the written description.
As touched on above, job titles can also be deceptive because many clients I’ve worked with were labeled a certain level, say Project Manager level 2 or Engineer level 3, yet they were actually performing the work of a level above them (Project Manager level 3 or Engineer level 4). The job title did not determine their comparators as other Project Manager level 2s or Engineer level 3s.
Skill
Skill includes experience, training, education, and ability. These must be skills actually required to perform the job, not just skills you possess.
If a salesperson has a Masters Degree in Economics, this skill is not used in determining whether the salesperson is being paid less than another sales person, unless the degree in economics is required to fulfill their duties in sales. That’s highly unlikely. Only the skills necessary to perform the job are determinative.
If an employer tells you a male was paid more because of his higher degree, if his degree isn’t necessary to perform the job, then it doesn’t factor into whether or not you are true comparators. It may factor into whether or not the pay disparity is legally justified. Check out my blog on Defeating Employer Excuses For Unequal Pay.
One way to figure out whether a skill is necessary for the job is to ask about your peers’ background. This will come in handy when your employer comes up with a skill set they argue is necessary for an alleged comparator’s job that you do not possess. Maybe that comparator does have that skill set, but you learned that another comparator, who is also paid more than you, does not have that skill set, then you’ve just proven that skill set is not necessary to perform the job duties.
Effort
Effort considers the amount of physical or mental exertion needed to perform the job.
For example, an employee performing clerical work may exert less effort than a more physically demanding job or a job that requires more complex analytical work. Or jobs requiring physical lifting and jobs requiring manual dexterity may involve substantially similar effort. (29 CFR § 1620.16(b))
Responsibility
Responsibility considers the degree of accountability required to perform a job, with emphasis on the importance of the job obligation.
For example, a female manager supervising a six acre park with limited facilities may not have substantially similar responsibility to a male manager supervising a much larger park with extensive facilities (Sims-Fingers v. City of Indianapolis, 493 F.3d 768, 770 (7th Cir. 2007)). In another example, a sales person who has authority to accept personal checks has more authority than other sales persons who do not.
Similar Working Conditions
The law requires that the work of comparative jobs must be performed under similar (not substantially similar) working conditions. These are conditions that are customarily taken into consideration when setting wage rates.
This involves two factors: (1) physical surroundings and (2) hazards.
“Physical surroundings” measures the elements such as temperature, fumes and ventilation that are regularly encountered by a worker, including their intensity and frequency.
“Hazards” measures the physical hazards regularly encountered, their frequency and the severity of injury they can cause.
Let’s see how some of this could play out:
You are a Director. There are many Directors at your company, with differing job titles. But, there are a few (or all) that perform substantially similar work as you; they are male; they are paid more. Your company will immediately point to the differing job titles to argue your jobs are not substantially similar. This is where you need to dive deep into the specific skills, efforts and responsibilities required to perform the job.
You and your comparators have the same reporting structure because you all report to the same Managing Director. You and your comparators manage approximately the same amount of employees (direct and indirect reports). You and your comparators created company policies and procedures or systems for running your department. You are on your way to proving substantial similarity. You’ll need to dive deeper than this, but it’s a good base to start.
When examining the skills, efforts, and responsibilities required for the job, there may be a decent amount of overlap in your analysis. Sometimes you may list out your duties and argue that from the duties of the job flows the similarity in the skills and efforts involved in completing the work and the responsibilities involved. Skills may include abilities, such as leadership, communication, organization, analytical, management, etc.
Substantial similarity in skills does not mean equal skill. It does not necessarily mean that because one job requires 5 years of contract administration experience that another job that requires 5 years of estimating experience is not substantially similar.
Every case is unique and each must be delicately evaluated. The knowledge of the industry, the work, the nuances of the company are key in advocating an equal pay case.
Talking to your peers about their skill sets and their work can be extremely valuable in proving your case. Ask about their education. Ask about their years of experience in different fields, for example as managers, including how many people they managed. Ask about any training they’ve undergone.
For example, when reviewing the skills required for the job, your employer may argue that male A’s MBA degree was required to perform his job. It can help if you can argue that male B does not have an MBA degree, yet is getting the job done. The only way you can make these nuanced arguments is if you are talking with your peers.
DISCLAIMER: this information is general in nature and does not constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed.