In late September, the Second Circuit affirmed the dismissal of a case brought by the Equal Employment Opportunity Commission (“EEOC”) against the Port Authority of New York and New Jersey, where it alleged female attorneys were paid less than male attorneys in violation of the Equal Pay Act (“EPA”). In a nutshell, the Second Circuit found that “broad generalization” about jobs, without actual comparisons of employees experience, training, education or ability was not sufficient to support an EPA Claim.

The Second Circuit’s decision in Equal Employment Opportunity Commission v. Port Authority of New York and New Jersey demonstrates the often hasty comparisons drawn by the EEOC in discriminatory pay cases and the important task of highlighting all factors that result in differing pay between employees in different positions. The Equal Pay Act prohibits the payment of a higher salary to a male employee, when a female employee is performing “substantially equal” work for a lower wage.

The EEOC argued that all attorneys at the Port Authority performed substantially equal jobs because they had the same job codes, were evaluated based on the same criteria, and received salary increases based on the same “maturity curve.” The Second Circuit held that the claims were based upon “broad generalizations” and failed to provide any detail regarding the employees’ experience, training, education, or ability, or the complexity and varying demands faced by Port Authority attorneys.

The Second Circuit confirmed that an EPA plaintiff must “establish that the jobs compared entail common duties or content, and do not simply overlap in titles or classifications.” This principle is also supported by the EEOC’s own regulations and Compliance Manual. It also went on to condemn the failure of the EEOC to bring forth any cognizable claim, other than unsupported comparisons: “That the EEOC faulted the Port Authority for paying a male attorney only $2,000 more in salary than his female co-worker with sixteen less years of legal experience only serves to underscore the paucity of support offered by the EEOC’s selection of comparators.” Further, the comparison table showed many male attorneys were paid less than their similarly qualified male co-workers.