Yes, a man can have an (un)equal pay claim too. So how can a company defend itself?

The Equal Pay Act (EPA) prohibits employers from discriminating against an employee based on sex by paying lower wages than are paid to employees of the opposite sex for performing equal work. We usually see women assert EPA claims.

But men can have them too.

For example, in this case, the plaintiff worked as a compensation analyst in the Human Resources Department at a university. A few years later, the HR department hired a woman in the same position at a much higher salary. Plus, the plaintiff’s pay stagnated while her’s increased. So, the plaintiff asserted an EPA claim.

Now, the defendant was not without, err, defenses.

For example, a defendant can prevail on an EPA claim if its shows that a factor other than sex motivated a pay differential. In this case, the university argued that the woman demanded a higher salary as a condition of her employment. Plus, she scored higher on performance reviews, had different skills and responsibilities, a better attitude, and a bachelor’s degree.

A higher salary demand alone won’t cut it.

As to the higher salary demand, the evidence was not clear that the female comparator conditioned her acceptance of the offer on the higher salary. But, putting that aside, the appellate court could find no authority that an employee’s prior salary or demand for a specific compensation is sufficient in isolation to justify a wage differential. “Such a rule would simply perpetuate existing sex-based pay disparities and undercut the purpose of the Act—to require that those doing the same work receive the same pay.”

Other factors must actually explain the pay disparity.

As to the other factors, the court recognized that the performance reviews, skills, attitude, and degree could be legitimate factors to justify a pay delta. However, the court underscored that “the text of the EPA provides that ‘a factor other than sex’ is a legitimate justification for a wage differential where the ‘payment is made pursuant to’ that factor.”

In plain English, it’s not enough for an employer to say that it could have paid someone more for specific objective reasons. Instead, the employer must show that these factors, in fact, explain the pay disparity. “Though a defendant need not offer contemporaneously produced evidence of its rationale, there must be evidence in the record proving that the employer’s proffered justification was the reason for the wage differential’s existence.”

In this case, the university failed to meet its burden of proving that these distinctions were “the reason for the pay disparity.”

Employer takeaways.

If you are going to pay two people differently for performing the same or similar job, be prepared to justify the pay disparity with objective factors such as a seniority system, a merit system, or a system that measures earnings by quantity or quality of production. If you are going to rely on a differential based on any other factor other than sex, you should base it on real-time analysis, not an after-the-fact justification.