August 19, 2013

He’s no woman, but hear him roar

Posted in Discrimination, Equal Pay, Gender / Sex tagged , , , , , , at 11:34 am by Tom Jacobson

I am woman. Hear me roar. Ray Burton  / Helen Reddy  (1971)

Peace 2One of my sisters started college the same year I started kindergarten – 1970 (that’s my weak attempt at noting in a politically correct way how much younger than her I am). I gained from her an appreciation of the great music of that era, plus she was for me a window to the world of civil unrest in America during the late 1960’s and early 1970’s.

I have a vague memory of her coming home after applying for a summer job at a local gas station and telling our parents that she didn’t get the job after being told something like, “Girls don’t work at gas stations.” If that were to happen today, I suspect we’d be filing an EEOC charge faster than you could say “Title VII.” Thankfully, such overt discrimination is rare in today’s workplaces, but recent headlines about the “glass ceiling” (see Gender pay gap at exec levels: Why women aren’t paid the same as men, CBS News Aug. 14, 2013) remind us that another form of gender discrimination — unequal pay for equal work — persists.

Generally speaking, the Equal Pay Act of 1963 says that except in certain gender-neutral circumstances, employers must not discriminate between employees on the basis of sex by paying them at a rate that is less than what they pay employees of the opposite sex for equal work. While we typically think of this as a rule that prevents employers from paying women less than men for the same work, a recent Minnesota case highlights that the law is gender neutral: men also must not be paid less than their female counterparts.

The case, Barron v DeCare Dental, LLC involves Patrick Barron’s allegation that he was paid less than his female co-workers and was otherwise unlawfully discriminated against by his employer. The employer asked the court to dismiss the EPA claim because of evidence suggesting that the differential was based on factors other than sex, namely conduct issues, review scores and length of employment. However, other evidence presented to the court undermined DeCare’s argument. Specifically, Barron presented evidence suggesting that some female employees were paid more despite less tenure, that performance issues had historically not been an issue, and that a supervisor testified how it would be “unfair” to pay Barron less. Because of these disputed facts, the court denied DeCare’s motion to dismiss and ordered the case to proceed to trial.

What you need to know: The Barron v. DeCare case is not ground-breaking, but it does remind us of a couple of key concepts:

  • The EPA makes it unlawful for employers to pay employees less than their co-workers of the opposite sex, unless the differential is based on specified gender-neutral criteria.
  • The EPA itself is gender neutral; that is, it protects both male and female employees.
  • Inconsistencies in the evidence submitted to support an employer’s claim that pay differentials are based on factors other than sex will weaken that defense and likely send the case to trial.

For more information about this article, please contact me at or

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2013 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA


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