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Jones Day Couple Right on ‘Equal Work,’ Pay Bias Claim Revived

April 29, 2021, 3:50 PM

A married couple suing Jones Day for alleged job discrimination is right that the dismissal of the wife’s Equal Pay Act claim was based on a mistaken reading of the 1963 law, a District of Columbia federal judge ruled, reconsidering his earlier judgment.

The plain language of the Equal Pay Act is ambiguous, but U.S. Supreme Court precedent indicates that Julia Sheketoff is correct that the employer bears the burden of showing that a female employee it paid less than a similarly situated male employee actually performed less work, the U.S. District Court for the District of Columbia said Wednesday.

The court’s original Sept. 4 ruling, which dismissed Sheketoff’s pay bias claim, was improperly based on the former Supreme Court clerk’s failure to allege, as part of her prima facie case, that she performed substantially equal work to the male lawyers she says were treated more favorably than her, Judge Randolph D. Moss said. Her lawsuit didn’t state that she worked as many hours as they did or otherwise worked as hard, he said.

His prior ruling was at least implicitly based on a misinterpretation of the meaning of “equal work” under the Equal Pay Act, the judge said. Unlike the different scheme for proving pay bias under Title VII of the 1964 Civil Rights Act, the Equal Pay Act places the burden on the employer to disprove the comparative equanimity and quality of female and male employees’ work as an affirmative defense, the judge said.

Sheketoff therefore couldn’t be faulted or penalized for not including such allegations in the August 2019 lawsuit she and husband, Mark Savignac, also a Jones Day lawyer and a Supreme Court clerk, filed against the firm, Moss said.

A worker must plead only two prima facie elements to flip the burden of proof to the employer in an Equal Pay claim, Moss said. The worker must allege and prove that she was paid less than employees of the opposite sex; and that their jobs required equal skill, effort, and responsibility and were performed under similar working conditions, the judge said.

Although it granted Sheketoff’s Sept. 9 motion for reconsideration, the court stopped short of reinstating her equal pay claim. The lawsuit doesn’t adequately allege that she met the substantially equal jobs requirement, it said.

Sheketoff doesn’t allege facts that meaningfully define the job at issue in terms of its actual requirements and “says little about what associates who work in Jones Day’s Issues and Appeals practice actually do,” Moss said. The suit “says nothing about Sheketoff’s predominant responsibilities during the relevant period of time; and it does not identify the predominant or essential responsibilities of Issues & Appeals associates in general,” he said.

The court granted Sheketoff leave until May 12 to file an amended complaint. Jones Day are entitled to know at the pleading stage the skills, efforts, and responsibilities she claims define equal work among Issues & Appeals associates for which she as denied equal pay, the court said

The Sept. 4 ruling also dismissed Savignac’s interference claim under the Family and Medical Leave Act. But it denied Jones Day’s motion on Savignac’s similar claim under D.C. leave law and the couple’s claim of gender inequality in a firm policy allowing male employees to take eight weeks less leave for the birth of a child than female employees. It also declined to dismiss Sheketoff’s discriminatory performance review, biased bonus pay, and other sex discrimination claims, and the couple’s federal and D.C. law retaliation claims.

Sheketoff, of Urbana, Ill., represents herself. Jones Day represents itself.

The case is Savignac v. Jones Day, 2021 BL 157447, D.D.C., No. 1:19-cv-02443, 4/28/21.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Steven Patrick at spatrick@bloomberglaw.com