A CASE STUDY ON THE EQUAL PAY ACT: USE OF THE “ANY FACTOR OTHER THAN SEX” AFFIRMATIVE DEFENSE
August 14, 2018
The District Court for the Western District of Wisconsin recently issued a decision in Hickethier v. Sch. Dist. of Cornell, Wis., No. 17-CV-506-jdp, slip op. (W.D. Wis. July 27, 2018), a case involving allegations of sex discrimination on the basis of a disparity in pay in violation of the Equal Pay Act (EPA). This case involves the employer raising the catch-all affirmative defense of “any factor other than sex.”
The plaintiff, a teacher named Caroline Hickethier, alleged that the defendant, the School District of Cornell, violated the EPA by paying her significantly less than two comparable male teachers: Steven Parker and Richard Erickson.
To prevail on her EPA claim, Hickethier must show that: 1) a male employee received a higher pay than her; 2) for equal work on a job requiring equal skill, effort, and responsibilities; 3) and, under similar working conditions. If Hickethier can prove there is a disparity in pay between her and the comparable male teachers, the District must then prove the disparity in pay is based on one of four affirmative defenses in order to avoid liability under the EPA. The District is able to defeat Hickethier’s EPA claim by proving any disparity is due to: 1) a seniority system; 2) a merit system; 3) a system which measures pay on the basis of quantity or quality of production; or 4) any factor other than sex.
The District uses one of two compensation models to determine teachers’ salaries. Prior to the 2014-15 school year, all teachers’ salaries were based primarily on their graduate-level educational credits and years of experience; this compensation model was collectively bargained for by the teachers. In 2014, after the passage of Act 10, the District established a new model of compensation. Under the new model, the District set a base wage for teachers and allowed for supplemental pay based on graduate-level educational credits, years of experience, and other incentives as needed on an individual basis (e.g., hiring bonuses, special pay for specific accomplishments or projects, and incentives for positions with limited candidate pools). Beginning in 2014, all new hire teachers were paid pursuant to the new model of compensation; while currently employed teachers were paid pursuant to the model that gave them a higher salary.
The District also offered health insurance coverage to its employees. Under both compensation models, employees have the option to decline coverage under the District’s health insurance and have the District pay them, as additional compensation, the amount of the premium it would have otherwise paid on their behalf. Additionally, under both models, the District has the option to deny an employee health insurance coverage (per employee’s consent) and add the premium it would have otherwise paid, less a few thousand dollars, to the employee’s salary.
Hickethier has been employed as an English teacher with the District for the past 28 years. She has a bachelor’s degree and a master’s degree, as well as 32 additional educational credits. Hickethier has been paid under the old compensation model. Her salary was $57,487.15 for the 2015-16 school year; $59,000 for the 2016-17 school year; and, $60,400 for the 2017-18 school year. By declining coverage in the District’s health insurance plan, Hickethier received additional compensation in the amount of $17,400 for the 2015-16 school year; $18,000 for the 2016-17 school year; and, $19,760 for the 2017-18 school year.
Parker has been employed as a biology and chemistry teacher with the District for the past 3 years. Prior to working for the District, Parker taught at another school district for 17 years. Parker is certified to teach biology and chemistry. He also has a master’s degree, as well as 15 additional educational credits. Parker, as a new hire, has been paid under the new compensation model. His salary was $67,000 for the 2015-16 school year; $69,000 for the 2016-17 school year; and, $71,000 for the 2017-18 school year. As part of his salary, Parker received a $13,500 annual incentive for having a dual certification and for teaching chemistry, which is a difficult subject for the District to find teachers certified to teach. Parker is the only employee at the District who has this arrangement.
Erickson was employed as an agricultural education teacher with the District for 32 years, prior to retiring after the 2017-18 school year. Erickson is certified to teach agricultural education. He also has a bachelor’s degree, as well as 32 additional educational credits. Erickson was paid under the old compensation model. After the 2014-15 school year, Erickson informed the District’s superintendent that he was considering retiring. To entice him not to retire, the District offered not to provide health insurance to Erickson; this would increase his monthly pension upon his retirement; although, it slightly decreased the total compensation Erickson received from the District. Erickson accepted the offer. Accordingly, Erickson’s salary was $65,587.15 for the 2015-16 school year; $67,600 for the 2016-17 school year; and, $69,360 for the 2017-18 school year. Erickson was the only teacher at the District who had this arrangement.
The Court’s Analysis
The Court decided the case on the District’s motion for summary judgement; which the Court granted. Although there was a disparity in pay between Hickethier and her two male colleagues, the Court found that the District introduced evidence that demonstrated the disparity was due to a factor other than sex. The Court found that Parker and Erickson were paid more than Hickethier because the subjects they taught were in high demand and the District had a limited supply of qualified teachers. In granting the District’s motion, the Court stated it need not consider whether Hickethier had established discrimination because, even if she had, the District had proven its affirmative defense and, therefore, no reasonable juror could find that any disparity in pay was the result of sex.
The Court reasoned that the District offered Parker a higher salary to convince him to leave his previous school district while it offered Erickson the guarantee of a higher pension to persuade him to continue teaching for another 3 years. Conversely, the Court reasoned, Hickethier already worked for the District and she was not considering retirement; thus, the District had no reason to incentivize her to either leave her previous employment or to continue to work for the District. Finally, the Court reasoned that, until she approaches retirement, Hickethier actually earned a higher pay by declining health care coverage than she would if the District denied her the coverage and added the premium amount to her salary.
Key Takeaway Points
This case illustrates that the circumstances faced by school districts are a necessary consideration in why a disparity in pay exists among employees. In its analysis, the Court considered the District’s difficulties in finding quality teachers to teach certain subjects and its difficulties with teacher pay; as well as its status as a small, rural school district and its declining enrollment numbers. This case also illustrates that claims under the EPA are analyzed on an individualized basis. The Court found unpersuasive Hickethier’s argument that neighboring school districts were able to hire teachers to teach the subjects of biology and chemistry without resorting to differential pay, noting that the District did not have the same options as other school districts.
Finally, this case illustrates that school districts are able to use a concern supported by past experiences as justification for differential pay without first having to confirm that the concern will come to fruition with regards to the current situation. The Court found unpersuasive Hickethier’s argument that the District needed to present evidence that the District tried to replace Erickson (and were unable to) before it could offer him a higher salary. The Court reasoned that the superintendent’s past experiences were sufficient to allow a reasonable juror to conclude that the pay increase was based on a factor other than sex, and thus, the District was not required to attempt to find a replacement for Erickson prior to offering him an increase in salary.
When faced with an EPA claim, it is important that school districts carefully evaluate the merits of the claim and, if a disparity in pay exists, what justifications support such a disparity.
For questions regarding this article, please contact your Strang, Patteson, Renning, Lewis & Lacy, s.c., attorney.
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