On September 29, 2014, the U.S. Court of Appeals for the Second Circuit affirmed the dismissal of a high-profile lawsuit brought by the EEOC – entitled EEOC v. Port Auth. of N.Y. & N.J., No. 13-2705 (2d Cir. Sept. 29, 2014) – alleging that female attorneys were underpaid as compared to their male counterparts at the Port Authority of New York and New Jersey (“Port Authority”). In dismissing the case, the Second Circuit affirmed the District Court’s determination that the EEOC had failed to adequately plead its Equal Pay Act claims against the Port Authority because it had failed to plead any specific facts regarding what the job duties of the employees were.
The Second Circuit’s ruling is a distinct defeat for the Commission, as equal pay issues are a key agenda item on the EEOC’s enforcement program.
In 2007, the EEOC initiated a three-year investigation into pay practices at the Port Authority which led to the filing of EEOC v. Port Auth. of N.Y. & N.J., No. 10 Civ. 7462 (S.D.N.Y.) in the U.S. District Court for the Southern District of New York; the case was assigned to Judge Buchwald. The crux of the suit was that female attorneys in non-supervisory positions were paid less than similarly situated male attorneys performing the same work in violation of the Equal Pay Act (“EPA”). In support of the EPA claim, the EEOC broadly pled that female attorneys were paid less than male attorneys with the same “job code” and that the disparity could not be explained by factors other than sex. (The suit also initially included an age discrimination claim which was later abandoned.)
The complaint was devoid of substantive allegations regarding the actual job duties of the attorneys, and at an initial conference Judge Buchwald expressed skepticism that the EEOC had sufficiently stated a claim. The EEOC then responded to interrogatories and provided information for 14 claimants and numerous comparators. The EEOC responses stated in conclusory terms that all of the attorney positions required the same skill, effort, and responsibility, but it still failed to provide any information about the specific content of the jobs. When the District Court asked during a pre-motion conference whether the EEOC was proceeding on the theory that “an attorney is an attorney is an attorney,” the EEOC agreed that this was true at the Port Authority. The District Court later granted the Port Authority’s Rule 12(c) motion for judgment on the pleadings, and the EEOC appealed.
The Second Circuit’s Decision
In EEOC v. Port Auth. of N.Y. & N.J., the Second Circuit held that the EEOC had utterly failed to meet the demanding EPA standard that the jobs compared be “substantially equal.” Id. at 18. The Second Circuit explained that the case law requires a plaintiff to establish “that the jobs compared entail common duties or content, and do not simply overlap in titles or classifications,” and it further noted that the EEOC’s own regulations and compliance manual emphasize that the content of the jobs determines whether they are substantially equal for purposes of the Equal Pay Act. Id. at 18-20. The Second Circuit found that the EEOC complaint and interrogatory responses, which were treated as a “functional amendment” to the complaint (id. at 10), failed to plead that the content of the jobs was similar. The Second Circuit commented that the EEOC set forth only “bland abstractions [which were] untethered from allegations regarding Port Authority attorneys’ actual job duties.” Id. at 23 (emphasis in original). The Second Circuit further characterized the EEOC’s contention that “an attorney is an attorney is an attorney” as a “broad generalization” that is not recognized by the EPA. Id.
Implications For Employers
The Second Circuit ruling is powerful precedent for employers defending EPA suits that a generalized comparison of jobs will not carry the day. Plaintiffs – and the EEOC – must plead and prove that the specific content of the jobs is substantially equal through discussion and analysis of particular job duties. The decision should also embolden employers to carefully review complaints, including those filed by the EEOC, and scrutinize whether they meet the Rule 8 pleading standard mandated by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).
Readers can also find this post on the Workplace Class Action blog here.