Vt.: Male Employee’s Higher Salary Justified by Bona Fide Factors

By Rosemarie Lally Dec 16, 2014

Finding that a male employee’s salary was higher than those of three female counterparts due to bona fide factors, including prior work history, education, salary matching, and exigent need, a Vermont state court found no violation of the Vermont Fair Employment Practices Act (FEPA).

Vermont’s Human Rights Commission and three female correctional employees had filed suit against the state, alleging that the Department of Corrections was paying a male employee in a comparable position as much as $10,000 per year more than the female employees in violation of FEPA.

The male employee was hired as a food service supervisor (FSS) at Southern State Correctional Facility in 2003. At that time the minimum qualifications for the position included a high school diploma (or equivalent) and four years of experience in volume cooking with related supervision experience. The contractual entry rate was Pay Grade 18, Step 1 with an hourly wage of $13.65.

Of the three applicants interviewed for the position in 2003, the male candidate had the most experience (23 years), the most related advanced degrees (a Bachelor's Degree in Hotel and Restaurant Administration and an Associate's Degree in Culinary Arts and Restaurant Management), and the highest interview score (34 as compared to 32.75). At the time, he was making an hourly wage of $35.17 as the Director of Environmental Services, Nutrition, Food Services and Laundry at an 81-bed hospital.

The superintendent of Southern State, stating that the candidate’s qualifications exceeded those of the other applicants and that he would hold a unique value because of the special factors involved in opening a new facility, requested and received permission to submit a "hire-into-range” request. The male candidate was offered, and accepted, the position of FSS at an hourly wage of $19.49, more than all other incumbent FSSs at other facilities – all of whom were women – were being paid.

After receiving several cost of living and step increases under the collective bargaining agreement, in 2006 the male employee was promoted to administrative services coordinator (ASC) at a pay rate of $25.01. At that time, the three female employees, all of whom had been hired prior to the male employee, also were ASCs and earned between $18.50 and $21.00 an hour. By 2012, step increases and COLA adjustments resulted in an annual salary of $58,531 for the male employee compared with $52,146, $48,755, and $48,755, respectively for his three female counterparts.

On consideration of the women’s complaint, the Vermont Human Rights Commission found that, although the evidence did not show consistency in how prior experience and relevant degrees were credited, neither did it show that crediting the male employee’s prior experience and educational background “perpetuated any kind of sex-based pay disparity in existence in the FSS position prior to his hire.”

Education is a legitimate business-based reason for a higher starting salary, the court said, adding that salary matching and hiring someone at a higher salary when there is an exigent need also are recognized as legitimate business-based reasons.

The court also noted that all salary increases were applied consistently and without discriminatory intent to the male employee’s and the female employees’ pay. However, because all increases except for longevity and merit step increases are calculated as a percentage of existing salary, “the difference in compensation between the male employee and his comparators has only grown larger since 2006” when he was promoted to ASC.

“The significant $10,000 differential in this case results from the fact that [the male employee] filled a specific need that Southern State had back in 2003,” the court said. “Corrections could have filled this need on a temporary basis …, but the law did not require this and it is not for the Court to ‘fix’ that decision more than a decade later. It is also not for the court to override portions of the collective bargaining agreement governing salaries. It may be that the Agreement could be revised to better address wage disparities among coworkers, but the court has no authority to do that in the context of this case.”

Acknowledging that “subtle and unintended discrimination continues to occur even in the most well-meaning workplaces,” the court nevertheless found nothing in this case to suggest that such subtle discrimination was at play. “Nothing in FEPA mandates that an employee not be hired or promoted if his or her pay will vary from that of others in the position,” the court notes. FEPA only requires that when two similar employees are paid different salaries, the employer has a legitimate reason for doing so that is unrelated to gender, the court added. Finding that no reasonable jury could conclude that the male employee’s salary in this case is the result of his gender rather than the state's seniority and merit system and other bona fide business factors, the court granted the state’s motion for summary judgment.

Vermont Human Rights Commission v. State of Vermont, Vt. Super. Ct., Docket No. 778-11-12 (Oct. 21, 2014).

Rosemarie Lally, J.D., is a freelance legal writer and editor based in Washington, D.C.

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