The Equal Pay Act (EPA) is a cornerstone of the legal framework protecting women from sex-based inequality and helping to narrow the persistent wage gap between workers of different sexes. More than 50 years after the EPA’s passage, the gender wage gap persists: on average, women earn just 80 cents for every dollar earned by men.
Gayle Gordon and Teresa Maxwell are emergency room physicians at a VA hospital in Little Rock, Ark., who accuse the VA of paying them less than several male doctors who perform similar work. Although the plaintiffs showed unequal pay for equal work—which was enough to prove discrimination under the EPA and win their case unless the VA could prove the disparity was due to a legitimate reason—a three-judge panel of the U.S. Court of Appeals for the Federal Circuit ruled against them in September 2018 based on that court’s requirement that plaintiffs provide additional evidence of discrimination in addition to the pay disparity. The plaintiffs petitioned for all twelve judges of the appeals court to rehear their case and to eliminate that requirement.
In October 2018, we filed an amicus brief on behalf of the ourselves, the ACLU of Arkansas, the national ACLU, and 23 other women’s rights groups to support rehearing of the plaintiffs’ case. We urged the court to reconsider its requirement that the plaintiffs prove more than the fact that they received unequal pay for equal work. We argued that this standard poses two distinct problems. First, it’s not clear what this standard means and as a result, courts have struggled to interpret it consistently. Second, this standard improperly places an additional burden on plaintiffs under the EPA, which provides that once the plaintiffs have shown a pay disparity, the employer has the burden to demonstrate that the difference is due to a factor unrelated to sex.