On May 17, 2012, Judge Naomi Buchwald of the U.S. District Court for the Southern District of New York issued a decision in EEOC v. Port Authority of New York & New Jersey, No. 10-CV-7462 (S.D.N.Y. May 17, 2012), granting judgment on the pleadings because the Equal Employment Opportunity Commission (EEOC) failed to raise a plausible claim that the Port Authority of New York and New Jersey violated the Equal Pay Act (EPA) by paying female lawyers less than male attorneys. Against the backdrop of the EEOC’s systemic litigation program, the decision is another big defeat for the Commission.
In EEOC v. Port Authority, the EEOC brought claims on behalf of 14 female non-supervisory lawyers alleging that the claimants performed the same work as male comparators receiving higher pay. The Equal Pay Act prohibits workplace discrimination by paying employees of one sex less than employees of the other sex for equal work “which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.” In a significant win for employers, Judge Buchwald concluded that the EEOC’s complaint and description of the skill, effort, and responsibility required from the female claimants and their male counterparts “do little more than recite broad generalities about attorneys in general, rather than anything specific about the Port Authority’s attorneys in particular.” Id. at 11.
Following a three-year investigation of a charge filed by a female attorney working in the Port Authority’s law department, the EEOC issued a determination letter to Port Authority in 2010, stating that its investigation substantiated EPA violations. The Port Authority refused to engage in conciliation efforts to resolve the alleged violation, and subsequently, the EEOC brought suit on September 29, 2010 on behalf of fourteen Port Authority female attorneys.
The complaint, however, failed to identify any male comparators that perform similar work to the allegedly injured female victims. The Port Authority filed a motion for judgment on the pleadings as to the EEOC’s claims for the 14 claimants. The Court permitted the Port Authority to serve contention interrogatories to determine the EEOC’s basis for its assertion that the Authority’s non-supervisory lawyers, male and female, perform work requiring equal responsibility.
Judge Buchwald found three of the interrogatories were particularly important. First, interrogatory 16 addressed the responsibilities of Port Authority employees. The EEOC’s response stated that claimants and comparators’ jobs “are all non-supervisory and have the same reporting structure and the same level of supervision” and the Port Authority attorneys are all permitted to respond and “act on behalf of the General Counsel.” Id. at 5. Next, in response to interrogatories 13 and 15, the EEOC provided a list of potential comparators whose job duties require the “same level of skill” as the claimants. Id. at 3. The EEOC also stated that the law department positions are in the same job grade or code and all hold the job title “attorney.” Id. at 5. Furthermore, the EEOC’s response explained the attorneys do not practice in discrete, unconnected practice areas, but rather all move around to work in various subject areas within the law department. Finally, the EEOC stated the “attorney maturity curve,” which dictates the upper and lower ranges of salaries for Port Authority attorneys at various legal experience levels, “does not differentiate between divisions” in the law department. Id.
Upon receipt of the EEOC’s responses to the contention interrogatories, the Port Authority filed a motion on the pleadings, arguing that the suit must be dismissed because the EEOC failed to raise a plausible claim.
The Court’s Analysis
The EEOC argued it need not describe in detail the requirements of female claimants’ and proposed male comparators’ jobs if the Port Authority does not itself treat the jobs as different. It urged the Court to find that if the Port Authority does not differentiate between its attorneys, then the employer has functionally conceded that all non-supervisory attorney jobs in its law department require the same skills, effort, and responsibility.
Judge Buchwald rejected the EEOC’s position. At the outset, Judge Buchwald noted that, the EEOC’s claims lack substance and merely track the language of the statute. Relying on the EEOC’s implementing regulations for the EPA, the Court found that neither the lawyers’ common job title, job grades, and codes nor the alleged “similar performance objectives” advance the EEOC’s claim. Id. at 13. Specifically, the Court reasoned that the performance criteria the EEOC cited are “as blandly generic as the ‘skills’ the EEOC contends the attorneys share.” Id.
The Court next considered whether the EEOC’s argument – that the lack of divisions for the work performed by the Port Authority lawyers – was sufficient to suggest the attorneys’ work required equal skill and effort. The EEOC contended that the Port Authority’s “attorney maturity curve,” which is used to set pay ranges, does not use an attorney’s division in setting a potential range. Id. Judge Buchwald explained that although the maturity curve is “the most persuasive” factor suggesting that all attorneys performed equal work, it is likewise insufficient to “prevent the jobs from being equal in all significant respects under the law.” Id. The maturity curve specifies ranges of possible salaries based on experience; determinations of specific salaries within those ranges must be based on other factors.” Id. at 15. Judge Buchwald explained that the EEOC “has alleged without substantiation that those determinations are based on sex but — without any analysis of job content — [the Court] cannot rely on that bald assertion.” Id.
For these reasons, the Court granted judgment on the pleadings to the Port Authority and concluded that the “allegations as a whole simply do not rise to the requisite level of facial plausibility.” Id. at 16.
Implications For Employers
The result in EEOC v. Port Authority is useful precedent for employers seeking summary judgment in EPA lawsuits. The Court rejected the EEOC’s attempt to state a generic claim that the lawyers all perform work requiring equal skill and effort. It shows that EPA defenses can be based on a requirement that the EEOC must “drill down” into the core essentials of a job as opposed to masking the deficiencies in a claim based on a generalized view of job duties.