4th Cir.: Experience justified pay gap between male, female department heads

Dive Brief:

A Virginia town did not engage in sex discrimination when it demoted its treasurer after she complained about her salary and left an important meeting early without permission, the 4th U.S. Circuit Court of Appeals held (Davis v. Town of Tazewell, Virginia, No. 19-2371 (4th Cir., Jan. 21, 2021)).
The treasurer claimed her demotion and constructive discharge stemmed from the town manager's "discriminatory animus toward women," evidenced by her low salary relative to another department head, a man. The town, according to the court's opinion, considered the demotion justified based on her "frequent salary complaints and her unauthorized decision to leave early from an important meeting."
The appeals court affirmed a district court's summary judgment ruling for the employer. The 4th Circuit noted several differences between the treasurer and the department head to whom the treasurer compared herself to establish an unfair salary difference. The other employee had previous experience in local government, and the treasurer did not. Further, the other department head filled a position that had been vacant for six months, giving the hiring manager the ability to provide him with a more competitive salary. The treasurer, however, came on board during the end of the outgoing treasurer's tenure and could not negotiate her salary.

Dive Insight:

The employer in this instance prevailed because it was able to articulate reasons that were persuasive to the court for the disparity in pay. In another recent case, a female employee was allowed to move forward because the employer did not explain why she was paid less than the three men who had held the job before she did. The court noted that the employer would have to provide an explanation for the disparity.

Regular pay audits can help employers remedy and prevent discriminatory pay practices, experts say. If a disparity is discovered, employers should determine whether those experiencing the difference in pay are performing equal or substantially similar work, Liz Washko, a shareholder at Ogletree, Deakins, Nash, Smoak & Stewart, previously told HR Dive.

If the work is equal or substantially similar, Washko said, the employer should determine if there is a legitimate justification for the pay disparity such as meaningful differences in education, experience, training or performance; if there is no such justification, a remedy could include an adjustment in pay.