Substantially Similar Jobs Don't Have to Be Identical Jobs in Discrimination Cases

Kathy Riser and QEP Energy were, respectively, the plaintiff and the defendant in a labor law case that was the subject of a recent opinion of the Tenth Circuit Court of Appeals. Labor lawyer Paul Mollica reports what Riser v. QEP Energy has to say about the Equal Pay Act and Title VII of the Civil Rights Act of 1964. The case is also the subject of an article in the Employment Law Blog.

Paul Mollica

Paul Mollica

Riser sued QEP for discrimination against her for discrimination on the basis of gender and age. Mollica points out that Riser’s claim was primarily based on the Equal Pay Act, which forbids employers from paying women less than men for doing work that is substantially equal. In this case, Ms. Riser was a fleet administrator for QEP and also did some facilities management, for which she was paid a little more than $47,000 yearly. Later, the company hired a man to do about the same work, and he was paid $62,000 yearly. The company had no explanation for this.

Later, when Ms. Riser separated from the company, a man was hired to take over her duties, and he was paid $66,000 per year. Mollica notes that the men were paid 30-40% more than Ms. Riser was being paid. When Ms. Riser’s lawsuit was heard in the U.S. district court, the judge decided that the work the men were doing was not substantially equal to what Ms. Riser had been doing. On appeal, the Tenth Circuit held that the record did not really provide enough information to make that determination. The employer has to demonstrate to a jury that there was a basis other than gender to make the distinction, and the case was remanded for that purpose.

Mollica thinks that the district court’s summary judgment ruling was largely the result of habitual thinking on the part of district courts that “substantially the same” means that people have to be performing identical work—like an assembly line job---in order for there to be discrimination. The Tenth Circuit’s opinion holds that the rule is never that strict. Sometimes, an employee will have additional duties in a job that another employee does not have. If these duties were just add-ons and the basic jobs were the same, the jobs are substantially similar.

Paul W. Mollica joined Outten & Golden LLP as Of Counsel in 2010. He is a frequent author and lecturer (for lawyers and courts) in the area of employment discrimination. He is a two-term past president of the Chicago Council of Lawyers, a public-interest bar association. He has been selected as a Super Lawyer© in Illinois and has the highest, AV© rating from Martindale-Hubbell. He is licensed to practice in Illinois and New York. The Legal Broadcast Network is a featured network of the Sequence Media Group.

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