Regular readers know that the EEOC has brought a number of lawsuits where evidence of discrimination is shaky, and that the courts have responded by ruling against them. The EEOC received more bad news today. In an opinion authored by Judge Debra Ann Livingston, the Second Circuit has dealt the EEOC a loss in EEOC v. Port Authority of New York and New Jersey. The panel, comprised of Judges Livingston and Droney and Judge Pamela K. Chen (E.D.N.Y., sitting by designation) affirmed the district court’s dismissal of the EEOC’s complaint. The district court had determined, and the Second Circuit agreed, that the EEOC had failed to proffer sufficient evidence that pay differentials between male and female attorneys employed by the Port Authority of New York and New Jersey violated the Equal Pay Act. Judge Livingston writes:

To support its claim that the attorneys performed “equal work,” the EEOC pled broad facts concerning the attorneys’ jobs (such as that the attorneys all have “the same professional degree,” work “under time pressures and deadlines,” and utilize both “analytical” and “legal” skills) that are generalizable to virtually all practicing attorneys. The EEOC did not, however, plead any facts particular to the attorneys’ actual job duties. (Opinion at 2-3)

Judge Livingston notes that the specific duties of each position are vital to evaluating a claim under the Equal Pay Act because “Congress rejected statutory language encompassing ‘comparable work’ to instead mandate equal pay for ‘equal work on jobs the performance of which requires equal skill, effort, and which are performed under similar working conditions.”29 U.S.C. § 206(D)(1);  see Brennan v. City Stores, Inc., 479 F.235, 238 (5th Cir. 1975) (quoting 109 Cong. Rec. 9197-98 (1963)) (Opinion at p. 17). If an Equal Pay Act claim fails to provide the specifics of the jobs in question, it is impossible to determine if the jobs are “substantially equal”. And in this case, the EEOC failed to provide such specifics.

[T]he EEOC alleged that the Port Authority required all of its nonsupervisory attorneys to have similar “experience, training, education, or ability,” bar admission, and the capacity to call upon “problem‐solving and analytical skills” as well as “professional judgment.”    However, such bland abstractions –untethered from allegations regarding Port Authority attorneys’ actual job duties – say nothing about whether the attorneys were required to perform “substantially equal” work.  Thus, the EEOC’s complaint provides no guidance as to whether the attorneys handled complex commercial matters or minor slip‐and‐falls, negotiated sophisticated lease and financing arrangements or responded to employee complaints, conducted research for briefs or drafted multimillion‐dollar contracts.  The EEOC asserts that such allegations are unnecessary because “all lawyers perform the same or similar function(s)” and that “most legal jobs involve the same ‘skill.’”    Appellant’s Br. at 29.    But accepting such a sweeping generalization as adequate to state a claim under the EPA might permit lawsuits against any law firm – or, conceivably, any type of employer – that does not employ a lockstep pay model.  Without more, these facts cannot be read to raise the EEOC’s “substantially equal” work claim “above the speculative level.”  See Twombly, 550 U.S. at 555.

Nor does the EEOC’s table purporting to compare claimants and comparators bolster its claim.    As the district court noted, the comparisons drawn appear superficially random, and rightly so: as the EEOC acknowledged, the table simply juxtaposes claimants and comparators whose “combined” bar admission and service dates are separated by no “more than ten years” – a full decade of difference in experience. (Opinion at 23-24)

You can read the entire opinion here.