As previously reported here, a three-judge panel of the U.S. Court of Appeals for the Federal Circuit held in September that Equal Pay Act (EPA) plaintiffs must show not only that they are receiving less pay than similarly situated male colleagues, but that the pay differential is “historically or presently based on sex.” This holding departed from the decisions of other federal courts of appeals and prompted a request for en banc review by the full court to overturn the panel decision. The American Civil Liberties Union (ACLU) and dozens of other advocacy groups have filed friend-of-the-court briefs supporting the plaintiffs’ request.

In Gordon v. United States, No. 17-1845 (Fed. Cir. Sept. 7, 2018), the two female emergency room physicians employed by the Department of Veterans Affairs established a prima facie case that they were paid less than male emergency room physicians. Typically, under the EPA, a plaintiff must show the employer: (1) paid employees of opposite sexes different wages; (2) for substantially similar work; (3) in jobs that require substantially equal skills, effort, and responsibility; and (4) that are performed under similar working conditions. Pointing to Yant v. United States, 588 F.3d 1369 (Fed. Cir. 2009), Judge Jimmie Reyna noted that in addition to the above prongs, a plaintiff must also show that the pay differential is “historically or presently based on sex.” However, in a supplemental section of the opinion (“Additional Views”), Judge Reyna encouraged plaintiffs to seek en banc review to enable the full court to overturn its precedent.

In its friend-of-the-court brief, the ACLU argues that the “historically or presently based on sex” requirement is an “unclear and unmanageable” “plus factor” that requires EPA plaintiffs to “go beyond showing that women and men are paid differently for equal work and demonstrate something more.” The ACLU requests that the full court grant rehearing to correct its EPA precedent and remove the additional requirement to show historical or present sex discrimination.