Here’s why this claim of sex-based pay discrimination fell short

One way to prove unlawful sex-based pay discrimination is to show that an employee of a different sex does a similar job but gets paid more.

But to win in this way, the plaintiff must show that the other employee is a valid comparator – that is, that they do substantially similar work. If they don’t, the pay discrimination claim falls flat.

It’s a simple concept, really: If it’s not pretty much the same job, there’s no reason why it should pay the same.

But in many cases, employees who allege sex-based pay bias draw comparisons that do not help their argument.

That is what happened in a recent federal appeals court case, in which a female employee said a male co-worker was wrongfully paid more. But his job was different – different enough, in fact, to cause the court to reject her suit.

Graphic design work

Ashley Noonan worked for Consolidated Shoe, which is a shoe distributor based in Lynchburg, Virginia. Hired as a content marketing coordinator in 2016, she stepped in to contribute with graphic design work and was given the title of graphic designer in 2018.

The company then hired Matt Wiese as a senior graphic designer. Wiese, who had more graphic design education and experience, was paid significantly more than Noonan was.

At around the time he was hired, Noonan asked for a raise. The company said no, but it gave her a new title of senior photographer and PR specialist.

When Noonan found out how much more Wiese was making, she confronted a superior about the discrepancy.

The superior was not happy: She admonished Noonan and told her it was a fireable offense to know another employee’s salary. The superior later apologized for making that remark, and the company’s HR director told Noonan she could not be fired for what she did.

Investigation finds no pay discrimination

The company investigated and decided that Wiese was rightfully paid more because of his greater job duties, skills and experience. Noonan said the company retaliated against her for complaining about the pay disparity by taking away some of her job responsibilities.

In June of 2020, the company released both Noonan and Wiese from employment. Noonan sued, alleging unlawful wage discrimination and retaliation.

The employer asked the court to deliver summary judgment in its favor, arguing that Wiese was not a valid comparator for the wage bias claim and that there was no materially adverse retaliation.

A lower court agreed and issued a decision for the employer. On appeal, the U.S. Court of Appeals for the Fourth Circuit affirmed.

It explained that Title VII, under which Noonan asserted wage bias, bans compensation discrimination based on sex.

How to prove pay discrimination

Employees can prove unlawful Title VII wage bias by showing:

• They are a member of a protected class
• They were performing their job satisfactorily
• An adverse action happened, and
• The circumstances suggest an unlawfully discriminatory motive.

Usually, the court said, a female employee establishes that fourth element by referencing a comparator who is male. The court also explained that in deciding whether two jobs are sufficiently similar, relevant factors include whether the two employees:

• Had the same job description
• Were subject to the same standards
• Had the same supervisor, and
• Had comparable experience, education and other qualifications.

On appeal, Noonan abandoned her argument that Wiese was a valid comparator for her. But she insisted there was unlawful discrimination, relying at the appeals court on the argument that Wiese was paid at the local industry standard while she was not.

The appeals court rejected this argument, saying Noonan did not raise an inference of pay bias.

It further upheld the decision to reject her retaliation claim, finding she did not suffer a materially adverse job action because she alleged unlawful pay discrimination.

The lower court’s ruling was affirmed.

Noonan v. Consolidated Shoe Co., Inc., No. 21-2328 (4th Cir. 10/19/23).