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WASHINGTON – The American Civil Liberties Union, the ACLU of the District of Columbia, the ACLU of Arkansas, and 23 women’s rights organizations have filed a friend-of-the-court brief urging the U.S. Court of Appeals for the Federal Circuit to reconsider a legal ruling that makes it more difficult for women to fight unlawful sex-based pay disparities under the Equal Pay Act. The Federal Circuit is a federal appellate court in Washington, D.C., that can hear equal pay claims from the nation’s federal employees, close to half of whom are women.

“The Equal Pay Act says that women should win their case if they show unequal pay for equal work, unless the employer can prove that the pay disparity had a legitimate explanation,” said Scott Michelman, Legal Co-Director, ACLU-DC. “Even though that’s how the Equal Pay Act has defined discrimination for more than five decades, the appeals court wrongly ruled that plaintiffs have to show additional evidence of discrimination.”

The brief was filed in the case of Gayle Gordon and Teresa Maxwell, emergency room physicians at a VA hospital in Little Rock, Ark. Gordon and Maxwell accuse the VA of paying them less than several male doctors who perform similar work. Although the plaintiffs had shown unequal pay for equal work—which should have meant they won unless the VA could prove the disparity was due to a legitimate reason—a three-judge panel of the appeal court ruled against them based on the court’s requirement that plaintiffs provide additional evidence of discrimination in addition to the pay disparity. Two weeks ago, the plaintiffs petitioned for all 12 judges of the appeals court to rehear their case and to eliminate that requirement.

Today’s friend-of-the-court brief in Gordon v. United States supports Gordon’s and Maxwell’s request for their case to be reconsidered. The civil rights groups assert that the additional requirement that the women show “discrimination” in addition to a pay disparity is a misreading of the Equal Pay Act.

The brief is available here: https://www.acludc.org/en/cases/gordon-v-united-states

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