Case Comparing Nurse Practitioners to Physician Assistants Illustrates Equal Pay Act Basics

The Equal Pay Act is not one the more commonly litigated federal employment statutes, in my experience.
Probably this is because it is viewed as embodying a very narrow view of equal work, in implementing the principle of “equal pay for equal work.”

That may be so, but defending an EPA case isn’t always a slam-dunk for the employer, as a recent Sixth Circuit case illustrates.

In this case involving female nurse practitioners (NP) and male physician assistants (PA) at VA facilities, the Sixth Circuit found that under the Equal Pay Act the plaintiffs had raised a genuine issue of material fact regarding the reason for the pay differential between these job classifications, and reversed the district court’s grant of summary judgment to the employer.

The court applied the folowing basic principles of Equal Pay Act (EPA) litigation:

The EPA prohibits employers from paying an employee at a rate less than that paid to an employee of the opposite sex for performing “equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.”
Jobs need not be identical in order to be considered “equal work” under the
EPA.
Whether a job is substantially equal for purposes of the EPA is determined on a case-by case basis and “resolved by an overall comparison of the work, not its individual segments.”
“Unlike the showing required under Title VII’s disparate treatment theory, proof of
discriminatory intent is not required to establish a prima facie case under the Equal Pay Act.”
“Once the plaintiff establishes a prima facie case, the defendant must ‘prove’ that the wage differential is justified under one of the four affirmative defenses : (1) a seniority system; (2) a merit system; (3) a system which measures earnings by quantity or quality of production; or (4) any other factor other than sex.”
Because these are affirmative defenses, the defendant bears the burden of proof.

The NPs established a prima facie case of wage discrimination in violation of the EPA because they presented evidence from which a reasonable jury could conclude that the positions of NP and PA were fungible (interchangeable), and that a male PA performing substantially equal duties as an NP would earn more money.

As in an EPA case on which I worked in the ’80s, the employer’s case got blown by its own management people:

The Medical Director of the Veterans Addiction Recovery Center explained that he works with and supervises both NPs and PAs. He agreed that the two jobs involve similar skill, effort, and responsibility, and explained that when a position is open it is advertised as a middle level practitioner to be filled either by an NP or a PA. When looking to fill these practitioner positions, [he] stated, “[W]e don’t consider whether it’s a Physicians Assistant or a Nurse Practitioner as an issue of qualification.”

Several others testified similarly.