This legal update provides a refresher regarding the Equal Pay Act (“EPA”). The EPA is a federal law that applies to most employers. It prohibits discrimination on the basis of sex in the payment of wages for equal work, “the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.” 29 U.S.C. § 206(d)(1). There are important exceptions, including: “where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex.” Id. Employers often rely on the fourth exception, referred to as the “catch-all” exception, when defending claims under the EPA. Therefore, this legal update will focus on that exception.

To establish a claim under the EPA, a plaintiff must prove certain elements. Specifically, a plaintiff must show: “(1) that different wages are paid to employees of the opposite sex; (2) that the employees do equal work which requires equal skill, efforts, and responsibility; and (3) that the employees have similar working conditions.” Hickethier v. Sch. Dist. of Cornell, Wisconsin, No. 17-CV-506-JDP, 2018 WL 3611992, at *3 (W.D. Wis. July 27, 2018), citing Fallon v. Illinois, 882 F.2d 1206, 1208 (7th Cir. 1989).

In determining whether work is substantially equal, Courts analyze whether the jobs have a “common core” of tasks, rather than focusing on position titles, classifications, or descriptions. Fallon, 882 F.2d at 1209. If there is a “common core” of tasks, then Courts consider whether there are any additional tasks or differences that make the jobs “substantially different.” Id.

If a plaintiff presents sufficient evidence of the three (3) elements above, then the burden shifts to his or her employer to show that the reason(s) for the pay disparity meets one of the exceptions. Hickethier, 2018 WL 3611992, at *3.

For instance, in a 2018 case involving a teacher who alleged a violation of the EPA against her employer, a school district, the U.S. District Court for the Western District of Wisconsin found in favor of the school district under the “catch-all” exception. More specifically, in Hickethier, a female English teacher alleged that her school district employer paid her significantly less than comparable male teachers. Id. at *1. The teacher alleged that the male teachers performed equal work under similar working conditions, but they were paid more than her. Id. at *3.

The school district presented evidence that the male teachers’ higher wages were due to factors other than sex. Id. at *3-4. Specifically, the male teachers were teaching high-demand classes, and there was a limited pool of qualified teachers. Id. In addition, the school district explained that it had offered one of the male teachers a higher salary to induce him to switch employers and that it had offered another male teacher a higher salary to induce him to delay retirement. Id. The Court sided with the school district and found that the wage differences were due to factors other than sex. Id.

Notably, the U.S. Equal Employment Opportunity Commission (EEOC) recently issued a press release that it had filed suit against a Wisconsin school district in the U.S. District Court for the Western District of Wisconsin, concerning allegations under the EPA related to female Special Education Teachers and a School Psychologist. We will monitor the litigation to determine what impact it has on a school district’s analysis when setting wages.


When determining the wages to offer for a new hire or promotion, it is important for an employer to examine its pay practices and what it pays for comparable work. If an offer creates a pay disparity among employees of different sexes for comparable work, an employer must consider whether a legitimate basis for the disparity exists.

For questions regarding this article, please contact the author,

or your Renning, Lewis & Lacy attorney.

Jenna E. Rousseau

Jenna E. Rousseau | 920-283-0708

Our legal updates provide general information only and are not intended to provide legal advice or create an attorney-client relationship.