Dive Brief:

• A construction worker was let go because the company didn't have work and she refused a transfer, not because of her complaint alleging pay discrimination, the 8th U.S. Circuit Court of Appeals ruled (Yearns v. Koss Construction Co., No. 19-1316 (8th Cir., July 2, 2020)).
• Teresa Yearns, a quality control trainee, sued her former employer, Koss Construction Company, alleging that it terminated her in retaliation for complaints about pay discrimination. When Yearns complained that she was doing the same job as her male peers but receiving less pay, she was told she would be promoted when a quality control technician position became available in her division. When the division manager was informed of Yearns' complaint, he allegedly said, "If we didn't have these women, we wouldn't have all these problems."
• The district court granted summary judgment to Koss and, on appeal, the 8th Circuit affirmed. The court said Koss presented evidence that Yearns' employment was terminated because the project to which she was assigned and Koss' business in the state were winding down; Yearns also had refused transfer to another job site. The appeals court rejected Yearns' reliance on the supervisor's statement; while such a statement could support a retaliation claim in some circumstances, the fact that after making the statement, the supervisor offered Yeans an opportunity to transfer to another job site undercut her argument.

Dive Insight:

The Equal Pay Act, which amended the Fair Labor Standards Act (FLSA), forbids pay discrimination based on sex. It also protects employees from retaliation when they engage in activity protected under the EPA, such as filing a complaint.

Pay equity has been a high-profile topic in recent years. Women in the workforce earn less than men, according to the U.S. Census Bureau, even when adjusted for occupation and education. The gender pay gap is even wider for women of color, according to the National Women's Law Center.

The U.S. Supreme Court declined to wade into the issue just days ago, allowing a 9th U.S. Circuit Court of Appeals decision on salary history to stand. That court held that an employee's prior rate of pay is not a "factor other than sex" that allows an employer to pay one a female employee less than a male employee who performs the same work.

However, in an attempt to fight pay inequity, an increasing number of states and localities are taking action, banning pay history questions as that information is believed to help carry past pay disparities into the present. Some of the salary history bans forbid employers from asking about previous wages, while some go even further and forbid employers from considering prior wage history altogether.

HR can help eliminate pay gaps by reviewing pay practices, working with supervisors to identify disparities and conducting pay audits, experts previously told HR Dive. Some have advised that employers conduct the audits with the assistance of counsel to ensure compensation information is privileged and not discoverable in the event of litigation.