Female Doctor Can Pursue Equal Pay Act Claim

By Jeffrey Rhodes November 21, 2022
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Takeaway: A hospital defended against claims of unequal pay and sex discrimination on the grounds that physician compensation depended on differing productivity targets and that the male physicians had better credentials and higher salaries before being hired. Under the Equal Pay Act, however, these arguments did not satisfy the hospital's burden of showing legitimate, nondiscriminatory reasons for the pay disparities.

​A federal district court ruled that a female doctor who earned less than male doctors at her hospital—including a new hire—could take her unequal pay claims to trial.

The plaintiff was a licensed, board-certified physician specializing in rheumatology. Until 2014, the plaintiff and her partner, a male physician, owned and operated a successful rheumatology practice. In 2014, the NYU Langone Health System and associated entities (NYU) recruited her and her partner to join NYU's Faculty Practice Group (FGP).

At the plaintiff's first meeting with NYU management, the managing physicians expressed surprise that she was a woman. When she joined the FGP, NYU negotiated her salary and her production requirements, measured in work relative value units (wRVUs). NYU's offer at least in part depended upon financial and productivity data received about her former private practice.

The plaintiff was employed as a staff physician and appointed as a clinical assistant professor at NYU but did not have an administrative title. Early in her employment, the practice moved into a new space, raising concerns with her as to how she and her partner were treated.

Two other physicians worked at the FGP under similar conditions when she started. One was the clinical director, who was the first rheumatologist hired for the local network and who was tasked with growing the practice. He recruited the plaintiff to NYU and performed administrative duties. He had a higher salary than her, both in absolute terms and on a per-wRVU basis.

Another long-time male rheumatologist had a higher salary than the plaintiff in absolute terms and at most times on a per-wRVU basis. His initial salary and wRVU were set based on data about his private practice, and he had an administrative role for which he was also compensated.

In 2017, two managing physicians met with the plaintiff about allegedly deteriorating relationships with colleagues and advised her to smile more. NYU renewed her contract.

A third male rheumatologist was hired by NYU in May 2017. His salary and wRVU target were set based on his prior position, and his salary was higher than the plaintiff's both in absolute terms and on a per-wRVU basis.

In September 2019, the site director approached the plaintiff about sharing her office with a male doctor on the days she was off. She objected, and during the meeting, the site director allegedly waved his arms around, called her a sexist term, and threatened to call the powers that be about the issue. The plaintiff complained to human resources and discussed the issue with the man's supervisor, who she claimed spoke to her in a mocking tone and suggested that she was being histrionic.

Beginning in November 2019, NYU began compiling a list of concerns about the plaintiff's clinical practices and interactions with co-workers. These included complaints about allegedly excessive or unnecessary tests and long wait times for appointments and responses to messages. In December 2020, NYU decided not to renew the plaintiff's employment past May 2021, telling her that it was going in a different direction.

The plaintiff sued NYU and several individual physicians for unequal pay under the Equal Pay Act (EPA) and for sex discrimination and retaliation under Title VII of the Civil Rights Act of 1964 and state and city law. The defendants moved for summary judgment on all her claims.

The U.S. District Court for the Southern District of New York denied summary judgment on the plaintiff's EPA claims, noting that the burden rested on the defendants to show that the pay disparities were justified. Differences in prior compensation alone could not satisfy that burden, particularly because the defendants hired a new male physician in 2017 at a higher salary than the plaintiff. The court found that the pay discrimination claim could not survive under Title VII because the defendants had a lesser evidentiary burden.

The court dismissed the plaintiff's claims concerning discriminatory discharge and a hostile work environment under Title VII, but allowed the retaliation claims to proceed. The court also allowed the harassment claim to proceed under New York City law. It dismissed several defendants but allowed the plaintiff's EPA claims to proceed against two managing physicians.

Edelman v. NYU Langone Health Sys., S.D.N.Y, No. 21 Civ. 502 (Sept. 28, 2022).

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.

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