Equal Pay in a #MeToo World

By Elizabeth Chilcoat

A recent case illustrates the perils of paying women less than men – even when there appears to be a good reason to do so.  In Bowen v. Manheim Remarketing, Inc., the company promoted the plaintiff, a woman, to replace a more experienced male employee.  The plaintiff was paid less than the more experienced male had been, it took six years of raises for her to catch up to him.   The plaintiff claimed that she was paid less because she was a woman.  The Eleventh Circuit decided that the employee’s Equal Pay Act claim could proceed to trial.

In reaching its decision, the court relied on “me too” evidence: evidence that the company had a history of generally paying women less than their male counterparts.  The employer first became aware of issues with equal pay in 2007, even mandating an equity pay raise for women in 2009.  The court also considered the employer’s history of preferring male employees and engaging in sexual harassment.  Based on this evidence, the court ruled, a reasonable jury might conclude that the plaintiff’s sex was a motivating factor in the employer’s decision to pay her less.

Almost as noteworthy is the court’s discomfort with experience as a basis for determining pay.  The court questioned the employer’s claim that the plaintiff’s male predecessor merited a higher salary because he was more experienced because the plaintiff was trained by her predecessor and was fully capable of performing the job.  If evidence of competence can undermine the explanation that pay was based on experience, then employers need to be prepared to defend themselves in Equal Pay Act cases with clear evidence of the reason that more experience warrants higher pay.  In this case, a jury will decide.