Under the federal Equal Pay Act (EPA), employers cannot discriminate on the basis of gender against an employee who performs work substantially equal to a colleague. However, as demonstrated by a new decision from the Fourth Circuit Court of Appeals (which includes North Carolina, South Carolina, and Virginia), employers can demonstrate factors other than sex that resulted in the pay differential. In Polak v. Virginia Department of Environmental Quality, the plaintiff was a female planner who made substantially less than a male colleague with the same title who performed similar work. She sued the Department, claiming a violation of the EPA.

The district court dismissed the claim on summary judgment, concluding that the male employee identified by the plaintiff was not an appropriate comparator because his skills and duties substantially differed from those of the plaintiff. On appeal, the Fourth Circuit agreed, affirming dismissal of the lawsuit. The court noted that under the EPA, identical job titles and similar duties are not enough for the claim to go to trial. In this case, the employer demonstrated that the male employee had substantially more experience and worked on more complex assignments that the plaintiff was not capable of performing. The Fourth Circuit said that this was not equal work as defined under the EPA.

This decision does not mean that plaintiffs must show that they perform identical work in order to prevail on an EPA claim. However, if the employer can demonstrate legitimate business reasons other than sex, it can justify the pay difference. As a result of the increasing number of EPA claims, many employers have conducted internal salary reviews to determine if pay differences for arguably comparable positions are supported by demonstrable business factors. If not, the employer may consider raising the pay for employees who appear to be undercompensated.