An auto-parts manufacturer did not discriminate against a female engineer when it paid her less than male employees who did the same job and less than other male employees who had somewhat similar duties, the 6th U.S. Circuit Court of Appeals held.
Freudenberg-Nok General Partnership (FNGP) employed Nicole Foco as an intern while she was in college. When she graduated with a degree in plastics engineering technology, in 2004, the business hired her as a test engineer. Foco’s position involved testing materials and did not require her to have contact with customers. FNGP promoted Foco to an applications engineer position in 2007. That role required her to serve as a technical liaison with customers but did not involve direct sales or profitability responsibilities. In 2009, Foco was given some account manager duties with smaller, less lucrative customers. She alleged that the manufacturer promoted her to account manager, but FNGP claimed it was simply allowing Foco to gain some account manager experience that would pose little risk to the business if she made mistakes. FNGP maintained that Foco was never promoted to account manager.
In 2008 and 2009 the auto-parts manufacturer gave Foco regular pay raises while freezing or reducing the pay of her co-workers.
Foco brought a gender-based compensation-discrimination lawsuit against FNGP, asserting claims under the federal Equal Pay Act, Title VII and Michigan’s civil rights law. Foco’s claims related to her work as an applications engineer and to her later duties in an account manager-type role. Specifically, she asserted that FNGP paid three other male application engineers substantially more than her. The district court rejected Foco’s claim on the ground that one of the engineers had significantly more work experience, another had both significantly more work experience and a master’s degree in plastics engineering, and the third had dramatically more experience in the field.
As for the account manager-related claim, Foco said three male account managers were paid substantially more than she was. The district court rejected this claim, noting that Foco’s position was not substantially equal to that of the male account managers, which required more skill, experience and responsibility. Moreover, each of the three men she compared herself with, the district court observed, had superior experience and qualifications and worked with clients that produced tens of millions of dollars for FNGP. In contrast, Foco had little or no prior sales experience, the accounts assigned to her generated significantly less revenue for FNGP, her accounts required less skill to manage, and any mistakes she made on her accounts would not financially harm the manufacturer.
Foco appealed the district court’s decision. The U.S. Equal Employment Opportunity Commission, in support of Foco, filed a friend of the court brief, urging that the appeals court reverse the district court’s decision.
The 6th Circuit, however, affirmed the decision and rejected all of Foco’s claims.
To advance a claim under the federal Equal Pay Act (EPA), a plaintiff generally must show that the employer paid workers of the opposite sex different wages for equal work or paid employees of the opposite sex different wages for jobs that require equal skill, effort and responsibility—or that are performed under similar working conditions. The two jobs do not have to be “identical,” but they do have to be “substantially equal.” The employer is permitted to assert one or more of four statutory affirmative defenses in response to a wage-discrimination claim under the EPA: 1) a seniority system, 2) a merit system, 3) a system that measures earnings by quantity or quality of production, and 4) any factor other than sex.
The 6th Circuit held that no reasonable juror could conclude that Foco’s gender played any role in the pay disparity between Foco and her male counterparts. It noted that the evidence showed that the difference between Foco’s pay and that of her male colleagues was attributable to Foco’s lacking the skill, experience and qualifications of those men. The 6th Circuit pointed out that pay differentials based on experience, overall qualifications and skill levels are legitimate “factors other than sex.”
Finally, the 6th Circuit said the pay increases Foco received in 2008 and 2009, while other employees received no increase or had their pay reduced, diminished any inference that her gender played a part in the pay differential between her and her male colleagues.
Foco v. Freudenberg-Nok Gen. P’ship, 6th Cir., No. 12-2174 (Nov. 25, 2013).
Professional Pointer: Employers need to be particularly sensitive to the concept of equal pay for equal work/equal pay for substantially equal work. Having accurate job descriptions and carefully prepared pay grades and compensation ranges, as well as being consistent in making compensation decisions when hiring, promoting and rewarding, will help employers avoid compensation-discrimination claims. Employers should also be aware that Equal Pay Act claims, unlike Title VII claims, do not require proof of intent to discriminate.
Michael D. Malone is a partner/member at Malone, Thompson, Summers & Ott, LLC, the Worklaw Network member firm in Columbia, S.C.