The Equal Pay Act is a legislative effort to equalize pay between men and women who perform in the same position. The law has helped improve things a lot, but there are still many court cases that hinge on whether the positions are truly equal. The Riser case in this chapter is a prime example.

If you were advising the employer in this case, what should they have done differently to structure their compensation practices to avoid violating the Equal Pay Act?

We review the district courts grant of summary judgment de novo,

applying the same standard used by the district court. McBride v. Peak Wellness Ctr., Inc., 688 F.3d 698, 703 (10th Cir. 2012). Summary judgment is appropriate where the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). If a reasonable jury could return a verdict for the nonmoving party, summary judgment is inappropriate. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In reviewing a grant of summary judgment, we view[] all evidence and any reasonable inferences that might be drawn therefrom in the light most favorable to the non-moving party. Croy v. Cobe Labs., Inc., 345 F.3d 1199, 1201 (10th Cir. 2003).

A. Equal Pay Act The EPA prohibits wage discrimination between employees on the basis of

sex . . . for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions. 29 U.S.C. 206(d)(1). The district court held that Ms. Risers EPA claim failed on two grounds. First, Ms. Riser could not establish a prima facie case of pay discrimination because she did not establish that her job was substantially equal to either Mr. Chinn or Mr. Bryants job. Second, even if Ms. Riser could establish a prima facie case of pay discrimination, her claim

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would fail because the wage disparity was the product of QEPs gender-neutral pay classification system, a factor other than sex. We disagree on both grounds.

1. Prima Facie Case

To establish a prima facie case of pay discrimination under the EPA, a plaintiff must demonstrate that: (1) she was performing work which was substantially equal to that of the male employees considering the skills, duties, supervision, effort and responsibilities of the jobs; (2) the conditions where the work was performed were basically the same; (3) the male employees were paid more under such circumstances. Sprague v. Thorn Ams., Inc., 129 F.3d 1355, 1364 (10th Cir. 1997) (citation omitted). QEP does not dispute that the conditions of Ms. Risers employment were basically the same as Mr. Chinn or Mr. Bryants or that Ms. Riser was paid less; it simply argues that Ms. Risers job was not substantially equal to the jobs of Mr. Chinn or Mr. Bryant.

Work is substantially equal for purposes of the EPA if it requires equal skill, effort, and responsibility. 29 U.S.C. 206(d)(1). This determination turns on the actual content of the jobnot mere job descriptions or titles. EEOC v. Cent. Kan. Med. Ctr., 705 F.2d 1270, 1273 (10th Cir. 1983), overruled on other grounds by McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 n.10 (1988). What constitutes equal skill, equal effort, or equal responsibility cannot be precisely defined, but must take into consideration the broad remedial purpose of the law. 29 C.F.R. 1620.14. Thus, [i]nsubstantial or minor differences in

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the degree or amount of skill, or effort, or responsibility required for the performance of jobs will not render the equal pay standard inapplicable. Id. That said, we have consistently held that jobs that are merely alike or comparable are not substantially equal for purposes of the EPA. Sprague, 129 F.3d at 1364; see also Nulf v. Intl Paper Co., 656 F.2d 553, 560 (10th Cir. 1981).

Genuine disputes of material fact exist as to whether Ms. Risers work was substantially equal to Mr. Chinns. First, Mr. Chinns fleet administration duties were carved directly out of Ms. Risers duties. Ms. Riser performed all of the fleet administration duties for QEP, then Mr. Chinn was hired and took on these responsibilities. Ms. Riser even discussed her fleet administration responsibilities with Mr. Bench to prepare Mr. Chinns job description and trained him to perform these duties until her termination. As Mr. Bench explained, there were no tasks on Mr. Chinns job description that Ms. Riser was not previously responsible for performing; the core functions of the fleet administration job remained the same. Aplt. App. 291.

The district court found that Mr. Chinn performed two duties beyond Ms. Risers: he developed a natural gas vehicle program and centralized the maintenance functions of the fleets. Riser, 2014 WL 257434, at *2. But, Ms. Riser stated she had begun implementing these programs prior to Mr. Chinns hiring. Whether Ms. Riser was performing these duties is precisely the type of factual dispute that renders summary judgment inappropriate.

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QEP contends that the jobs were not substantially equal because Mr. Chinn spent 100% of his time performing fleet administration duties, whereas Ms. Riser spent roughly 33% of her time on such duties and the remaining 67% of her time performing facilities-management duties. Aplee. Br. 2223. But, the fact that a female employee performed additional duties beyond a male comparator does not defeat the employees prima facie case under the EPA. See 29 C.F.R. 1620.14(a) ([D]ifferences in skill, effort or responsibility . . . do not justify [a finding that two jobs are not equal under the EPA] where the greater skill, effort, or responsibility is required of the lower paid sex.); Beck-Wilson v. Principi, 441 F.3d 353, 360 (6th Cir. 2006).

Nevertheless, QEP relies on several cases for the proposition that employees do not perform equal work for purposes of the EPA where significant amounts of time are spent on different tasks. Aplee. Br. 2324 (citing Nulf, 656 F.2d at 56061 (secretary-receptionist who performed some work of order-desk employees did not perform substantially equal work to order-desk employees); Gunther v. Cnty. of Wash., 623 F.2d 1303, 130910 (9th Cir. 1979) (female prison guards who spent half of time guarding prisoners and half performing clerical duties not substantially equal to male prison guards who spent most of time guarding prisoners); Katz v. Sch. Dist. of Clayton, Mo., 557 F.2d 153, 156 (8th Cir. 1977) (teachers assistant who did not spend majority of time teaching did not perform substantially equal work to full-time teachers)). But the nature of

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the jobs at issue in these cases was such that, where male comparators spent more time performing the relevant tasks, that necessarily entailed more responsibilities. Not so here, where Ms. Riser performed the entirety of fleet-administration tasks that were eventually passed to Mr. Chinn. QEP has not presented evidence that the additional time Mr. Chinn spent on fleet administration necessarily meant he performed more work. Although Ms. Riser only spent 33% of her time performing fleet administration duties, a reasonable trier of fact might conclude that she was simply more efficient than Mr. Chinn at managing QEPs fleet. That is a question for the trier of fact.

Genuine disputes of fact also exist as to whether Ms. Risers job was substantially equal to Mr. Bryants. The parties agree that Mr. Bryant, like Ms. Riser, managed construction projects at QEPs field offices. Mr. Bryant took over management of the construction projects in North Dakota and Pinedale, Wyoming that Ms. Riser had been managing at the time of her termination. Further, Mr. Bench testified that prior to Ms. Risers termination, she performedall of the listed responsibilities QEP assigned to the facilities manager position. Nevertheless, QEP contends Mr. Bryant had four additional responsibilities.

First, QEP asserts that Mr. Bryants direct supervision of an employee at the Denver office was a significant difference between his duties and Ms. Risers. Aplee. Br. 27. But this duty consumed under 5% of Mr. Bryants time, and he did not have the authority to fire or change the employees compensation without Mr.

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Benchs approval. Further, QEP neglected to even list this responsibility amongst the Facilities Managers duties. And, although Ms. Riser had no direct reports, she did have supervisory responsibility over employees at QEP field offices.

Second, QEP asserts that Mr. Bryants management of construction projects at QEPs Denver office rendered his job unequal to Ms. Risers. Aplee. Br. 28. But Mr. Bryant himself testified that the Denver remodeling project began in November 2011two months after QEP terminated Ms. Riser. The fact that Mr. Bryant worked on a construction projectone similar in nature to those Ms. Riser had previously managedthat began after Ms. Risers tenure with QEP ended does not show their respective positions were different.

Third, QEP points towards Mr. Bryants facilities management of the Denver office. Aplee. Br. 29. But Ms. Riser performed similar tasks for the Salt Lake City office, and QEP cites no evidence showing that these tasks required different amounts of skill, knowledge, or responsibility.

Finally, QEP argues that Mr. Bryant performed security and maintenance duties at field offices. Aplee. Br. 2930. But Mr. Bryant stated that his involvement in facilities management of QEP field offices was [s]lim to none. Aplt. App. 539. As this court has held, job differences that are not significant in amount or degree will not support a wage differential. Brennan v. S. Davis Comm. Hosp., 538 F.2d 859, 862 (10th Cir. 1976). We think a reasonable jury could find the skill, effort, and responsibility required to perform Ms. Risers job

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was substantially equal to that required to perform Mr. Bryants. Finally, we note that QEPs argument that Ms. Riser has no comparator

appears especially disingenuous. QEP essentially bifurcated Ms. Risers position, assigning the tasks she was performing to the two positions of Fleet Administrator and Facilities Manager, which were then filled by male employees compensated at significantly higher rates.

2. QEPs Affirmative Defense

Once a plaintiff has established a prima facie case of discrimination under the EPA, the defendant must show the pay disparity was justified by one of four permissible reasons: (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. 29 U.S.C. 206(d)(1); see also Cnty. of Wash. v. Gunther, 452 U.S. 161, 168 (1981) (describing these as the EPAs four affirmative defenses). To meet this burden, an employer must submit evidence from which a reasonable factfinder could conclude not merely that the employers proffered reasons could explain the wage disparity, but that the proffered reasons do in fact explain the wage disparity. Mickelson v. N.Y. Life Ins. Co., 460 F.3d 1304, 1312 (10th Cir. 2006) (citation omitted). At the summary judgment stage, this means an employer must prove at least one affirmative defense so clearly that no rational jury could find to the contrary. Id. at 1311 (citation omitted).

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A bona-fide, gender-neutral pay classification system constitutes a factor other than sex under the EPA. Washington Cnty., 452 U.S. at 171 (courts cannot substitute their judgment for that of an employer with a bona fide job rating system (citation omitted)); Corning Glass Works v. Brennan, 417 U.S. 188, 201 (1974). However, such a classification system serves as a defense only where any resulting difference in pay is rooted in legitimate business-related differences in work responsibilities and qualifications for the particular positions at issue. Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 525 (2d Cir. 1992); see also Brownlee v. Gayy & Taylor, Inc., 642 F. Supp. 347, 353 (D. Kan. 1985) (mere presentation of a formal salary classification system does not foreclose EPA claim).

QEP paid Ms. Riser $47,382 annually, Mr. Chinn $62,000 annually (31% more than Ms. Riser), and Mr. Bryant $66,000 annually (39% more than Ms. Riser). QEP argues the pay differential between Ms. Riser and Mr. Chinn was based on QEPs bona-fide, gender-neutral pay classification system that was based on compensation data in the industry. Aplee. Br. at 3233. Further, QEP maintains the pay differential with respect to Mr. Chinn is explained in part by QEPs desire to pay him the same amount he received at his prior job. Similarly, it argues Mr. Bryants elevated salary was due to his initial rejection of QEPs offer of $62,500. QEP asserts that these facts conclusively establish that any difference in pay was based on a factor other than sex. We disagree.

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QEPs compensation system classified Ms. Risers position as a Grade 5, Mr. Chinns as a Grade 7, and Mr. Bryants as a Grade 7. But, Ms. Risers pay grade was not based on the duties she was actually performing, but on the duties administrative assistants typically performdespite the fact Ms. Risers supervisors knew she was not performing administrative assistant duties. Ms. Riser was never asked by anyone at QEP about the skills or qualifications needed for her position. Moreover, she twice requested for her pay grade to be re- evaluated, to no avail. Given the fact that Ms. Riser performed the bulk of the responsibilities performed by Mr. Chinn and Mr. Bryant combined, a reasonable trier of fact could certainly question how 31% and 39% pay gaps could be explained by legitimate business-related differences in work responsibilities and qualifications for the particular positions at issue. Aldrich, 963 F.2d at 525.

QEP is correct that an individuals former salary can be considered in determining whether pay disparity is based on a factor other than sex. See Brickey v. Emprs Reassurance Corp., 293 F. Supp. 2d 1227, 1233 (D. Kan. 2003). However, the EPA precludes an employer from relying solely upon a prior salary to justify pay disparity. Angove v. Williams-Sonoma, Inc., 70 F. Appx 500, 508 (10th Cir. 2003) (unpublished). The 31% disparity between Ms. Riser and Mr. Chinns pay cannot be justified simply by Mr. Chinns prior salary.

Likewise, a companys decision to pay an elevated salary to an applicant after he rejected a lower offer can constitute a factor other than sex. See Clayton