This is the fourth part of guidance on how employers can better protect themselves from compensation discrimination claims.
#5 – Group employees into similarly situated job groups
The very first instruction the EEOC states in the Compensation Discrimination Compliance Manual is “Investigators should identify similarly situated employees both inside and outside the charging party's protected class.”
Therefore, in setting salaries or salary increases, if comparisons are made between or among employees (as they almost always are), the employee groupings should be unambiguously defined and the grouping should be limited to employees who are similarly situated.
Avoid the expediency of lumping employees into one or two ill-defined categories in which the employees do not perform the same or similar work.
Why? The Equal Pay Act looks to whether the compared employees are performing “equal work;” Title VII examines whether the plaintiff’s job is “similarly situated” to the jobs worked by the comparators. Employers who “compare” the salaries of employee “A” with employee “B” will have a more difficult time proving that they were not really working in comparable jobs. If you must group dissimilar jobs (say, for purposes of dividing up a finite pot of money), make sure the paperwork unambiguously states the reason for the grouping.
Group employees by the job being performed – not by the characteristics of the employee who holds the job. Beck-Wilson v. Principi, 441 F.3d 353, 363 (6th Cir. 2006) (“the comparison at the prima facie stage is of the jobs and not the employees”). An employee who has worked for 10 years may rightly deserve (all other things being equal) to be paid more than an employee who has worked 5 years, but if they perform the same or similar job, they should be included in the same comparison group. The relative experience, of course, may be used to justify any salary disparity.
When investigating or prosecuting a claim of compensation discrimination, the EEOC (or OFCCP as the case may be) can and will "revise" an employer’s pay categories in order to compare employees who are performing the same or similar work. The EEOC instructs its investigators:
#5 – Group employees into similarly situated job groups
The very first instruction the EEOC states in the Compensation Discrimination Compliance Manual is “Investigators should identify similarly situated employees both inside and outside the charging party's protected class.”
Therefore, in setting salaries or salary increases, if comparisons are made between or among employees (as they almost always are), the employee groupings should be unambiguously defined and the grouping should be limited to employees who are similarly situated.
Avoid the expediency of lumping employees into one or two ill-defined categories in which the employees do not perform the same or similar work.
Why? The Equal Pay Act looks to whether the compared employees are performing “equal work;” Title VII examines whether the plaintiff’s job is “similarly situated” to the jobs worked by the comparators. Employers who “compare” the salaries of employee “A” with employee “B” will have a more difficult time proving that they were not really working in comparable jobs. If you must group dissimilar jobs (say, for purposes of dividing up a finite pot of money), make sure the paperwork unambiguously states the reason for the grouping.
Group employees by the job being performed – not by the characteristics of the employee who holds the job. Beck-Wilson v. Principi, 441 F.3d 353, 363 (6th Cir. 2006) (“the comparison at the prima facie stage is of the jobs and not the employees”). An employee who has worked for 10 years may rightly deserve (all other things being equal) to be paid more than an employee who has worked 5 years, but if they perform the same or similar job, they should be included in the same comparison group. The relative experience, of course, may be used to justify any salary disparity.
When investigating or prosecuting a claim of compensation discrimination, the EEOC (or OFCCP as the case may be) can and will "revise" an employer’s pay categories in order to compare employees who are performing the same or similar work. The EEOC instructs its investigators:
The investigator should determine the similarity of jobs by ascertaining whether the jobs generally involve similar tasks, require similar skill, effort, and responsibility, working conditions, and are similarly complex or difficult. The actual content of the jobs must be similar enough that one would expect those who hold the jobs to be paid at the same rate or level. Job titles and formal job descriptions are helpful in making this determination, but because jobs involving similar work may have different titles and descriptions, these things are not controlling. Similarly, the fact that employees work in different departments or other organizational units may be relevant, but is not controlling.
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Factors other than job content also may be important in identifying similarly situated comparators. For example, minimum objective qualifications, such as a specialized license or certification should be taken into account. Persons in jobs requiring certain minimum objective qualifications should not be grouped together with persons in jobs that do not require those qualifications, even though the jobs otherwise are similar. Although minimum objective qualifications should be taken into account in defining the pool of similarly situated employees, employees' relative qualifications should not be considered at this stage.
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