Opinions / Panel Activity

Late last month the Federal Circuit issued its opinion in Boyer v. United States, an Equal Pay Act case that we have been following because it attracted an amicus brief. In this case, the Federal Circuit reviewed a decision by the Court of Federal Claims to grant the government’s motion for summary judgment rejecting a pay discrimination claim under the Equal Pay Act. In an opinion by Judge Dyk joined by Judges Chen and Stoll, the Federal Circuit reversed. The court found that “the EPA applies equally to the United States as to other employers and that mere reliance on prior compensation standing alone is not an affirmative defense to a prima facie case under the EPA, unless the employer can demonstrate that the prior pay itself was not based on sex.”

Judge Dyk began by highlighting the factual and procedural background of the case:

Dr. Boyer was employed by the Veterans Affairs Medical Center of Birmingham, Alabama (“BVAMC”) as a clinical pharmacist in 2015. Six months later, BVAMC hired a male clinical pharmacist. Both Dr. Boyer and the male comparator were hired according to the federal hiring system, the General Schedule or “GS” system. . . . At the time of her hiring, Dr. Boyer was appointed as a clinical pharmacist at GS-12, Step 7 with a starting salary of $115,364. Although the minimum rate in this locality for GS-12 clinical pharmacists was $96,133 at Step 1, Dr. Boyer was appointed at Step 7 ($115,364) due, at least in part, because of her prior salary, which was $115,003. The male comparator was appointed at a GS-12, Step 10, with a starting salary of $126,223. His prior salary was $130,000. There are alleged other differences between the two. Dr. Boyer contends that she was more qualified than the male comparator, having had seven more years of experience after graduating with her doctorate in pharmacy in 1999. She also contends that she had unique mental health work experience as compared to the male comparator. . . . Three years after her hiring, Dr. Boyer discovered the pay discrepancy. She inquired about the differential with Human Resources and eventually, in 2018, filed an Equal Employment Opportunity (“EEO”) complaint, alleging wage discrimination. . . . Two months later, Dr. Boyer filed suit in the United States District Court for the Northern District of Alabama, alleging a violation of the EPA. . . . . The EPA provides that no employer that is subject to the Act shall discriminate between employees of the opposite sex for equal work that requires ‘equal skill, effort, and responsibility, and which are performed under similar working conditions.’ . . . Under the EPA, the plaintiff has the burden of establishing a prima facie case—showing that the employer pays employees of the opposite sex who perform substantially equal work unequally. . . The Northern District of Alabama initially granted summary judgment to Dr. Boyer, finding that ‘the record establishes that prior salary alone was the reason for [the] salaries and such a justification cannot solely carry the affirmative defense.’ . . . Thereafter, the government filed a motion to dismiss, arguing that the district court lacked subject matter jurisdiction, and plaintiff filed a motion to transfer the case to the Court of Federal Claims (“Claims Court”). The magistrate judge vacated his ruling on summary judgment and transferred the case. . . . [In] the Claims Court’s view, prior pay alone could establish an affirmative defense to a prima facie case under the EPA in the context of federal employees, the court granted summary judgment for the government and denied Dr. Boyer’s motion for summary judgment. This appeal followed.

Judge Dyk began his analysis by stating that the two federal statutes that apply to federal hiring, 5 U.S.C. § 5333 and 38 U.S.C. § 7408, permit prior pay to be considered, but “do not apply to Dr. Boyer because she was hired pursuant to 38 U.S.C. § 7401(3), a statute that provides specifically for the hiring by the VA of certain health professionals.” Judge Dyk agreed, however, with the government’s argument “that, unless one rule is held to be applicable to all federal employees, the different statutes would in practice carve VA employees into distinct classes for the purpose of EPA claims.” He identified a question for the court to decide in this case: “whether [the EPA] applies differently to federal employees than to employees outside the federal government.”

On this question, Judge Dyk began by discussing “the standard applicable to employers other than the federal government and whether prior compensation in that context can justify a pay differential.” He discussed the history of the EPA, focusing on its fourth exception recognizing the permissibility of “a differential based on any other factor other than sex.” Judge Dyk went on to discuss how different circuits deal with this factor, and he identified a “middle ground approach” used by three circuits that “recognizes that sex discrimination can be (but is not always) inherent in prior pay.” According to Judge Dyk, moreover, “using prior compensation alone could undermine a core concern of the EPA—to eliminate gender discrimination in compensation.” He emphasized how “relying on prior compensation alone as an affirmative defense to the EPA risks thwarting the Act’s most fundamental goal—equal pay for equal work.” Judge Dyk also noted how “the employer bears the burden to prove its affirmative defense that prior pay is a factor other than sex because it does not reflect sex discrimination.”

Next, Judge Dyk analyzed the government’s contention that the EPA should not apply to federal employees. The court concluded that “[t]here appears to have been no policy reason for the exclusion of federal government employees under the EPA’s initial coverage.” Furthermore, he explained, “[t]he legislative history of these amendments confirms an intention to achieve equal treatment of government and private employers and employees.”  He rejected the government’s reliance on 5 U.S.C. § 5333 and 38 U.S.C. § 7408 as supporting a different conclusion. He explained that, when “two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.”

According to Judge Dyk, “the principle of the 1974 amendments to the Fair Labor Standards Act, expanding the EPA to federal employees, is that the same rules ought to apply to both government and private employees.” He also explained how “both pay-setting statutes are permissive, not mandatory.” And, he condinued, “even though our reading of the EPA would, to a limited extent, cabin the discretion that federal employers would otherwise have under the pay-setting statute, no Congressional policy will be defeated by construing those statutes not to authorize actions that would be in violation of another statute.”

Judge Dyk rejected an argument by Dr. Boyer that the court should “require an award to Dr. Boyer without remanding for further proceedings.” Judge Dyk explained how “there is evidence that other factors went into the decision to set Dr. Boyer and the male comparator’s pay,” and how as a result the lower court can determine on remand whether “a bona fide business reason other than prior pay played a role in the differential.”

As a result of Judge Dyk’s analysis, the Federal Circuit “reverse[d] the grant of summary judgment and remand[ed the case] to the Claims Court for further proceedings consistent with this opinion.”