Under the Equal Pay Act (EPA), it is illegal for employers to pay men and women differently, if the men and women are performing at the same level of skill, effort and responsibility. By definition, an EPA claim also involves a discrimination claim alleging sex-based wage discrepancies under Title VII of the Civil Rights Act. However, the legal procedures for each claim may be different. An employee seeking to sue the federal government for an EPA violation can either file an informal EEO complaint with the agency’s EEO office (within 45 days) or can file directly in court (within two years, or three years for a willful violation). In contrast, a federal employee seeking to sue under Title VII must file within 45 days with the agency’s EEO office, and exhaust administrative procedures under the EEOC’s regulations, before filing in any court.
A federal trial court in Washington, DC, recently opined that a federal employee’s disparate pay claims under Title VII cannot be saved by alleging a continuing violation, even if every paycheck reflects a “new event”. The continuing violation theory states that if an employee timely files with regard to the last event of the discrimination, then the earlier and older discriminatory events may also be considered timely. The court in Schrader v. Broadcasting Board of Governors, CA No. 00-2804 (March 30, 2004); 104 FEOR 359 (D.D.C. 2004), considered a case where the employee was paid less than a male co-worker from 1997 through 2002, but did not initiate EEO counseling until 2000. The court did not apply the continuing violation exception to the pre-2000 disparate pay.
The court opined that the continuing violation doctrine saves claims where the employee could not have been aware of the discrimination until a series of acts occurred. The court also reasoned that because the plaintiff compared herself to one male in alleging a disparate pay claim, but did not allege a pattern or system where all women were treated differently than men, the continuing violation doctrine was inapplicable. Finally, the court also found it persuasive to construe the disparate pay claim as a non-promotion claim, because the plaintiff was paid less than if she had been promoted. Accordingly, the issue would be untimely as the construed non-promotion occurred outside the limitation period. Based on these analyses, the court concluded, without specifically ruling, that the Title VII disparate pay issues are not saved by the continuing violation doctrine. Although the court’s decision is not clear, it appears that the court considered the Title VII disparate pay issue timely only for the 45-day period prior to the 2000 EEO counseling.
Finally, the court also confirmed that a federal employee wishing to sue the federal government for a violation of the Equal Pay Act alone must file the claim at the U.S. Court of Claims if the claim exceeds $10,000.
** This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com. **
