any factor other than sex. . . ." 29 U.S.C. § 206(d)(1).
47. The plaintiff in an action under the Equal Pay Act has
the burden of proving that she did not receive equal pay for
work substantially equal to that performed by male personnel.
Corning Glass Works v. Brennan, 417 U.S. 188, 195, 94 S.Ct.
2223, 2228, 41 L.Ed.2d 1 (1974); EEOC v. Mercy Hospital &
Medical Center, 709 F.2d 1195, 1197 (7th Cir. 1983); EEOC v.
Kenosha Unified School District No. 1, 620 F.2d 1220, 1224 (7th
48. To meet this burden, plaintiff must establish that the
work performed by higher-paid males was substantially equal,
based on "actual job performance and content — not job titles,
classifications or descriptions." Gunther v. County of
Washington, 623 F.2d 1303, 1309 (9th Cir. 1979), aff'd,
452 U.S. 161, 101 S.Ct. 2242, 68 L.Ed.2d 751 (1981). See also
Hodgson v. Miller Brewing Co., 457 F.2d 221, 227 (7th Cir.
1972). Establishment of a prima facie case depends on
plaintiff's ability to show the performance of equal work, not
merely that a wage differential exists and that similar jobs
are involved. Walker v. Columbia University, 407 F. Supp. 1370,
1374 (S.D.N.Y. 1976), aff'd, 568 F.2d 953 (2d Cir. 1976).
49. The threshold requirement is that the jobs to be compared
must be substantially the same, i.e., that the job content be
equal. Edmondson v. Simon, 497 F. Supp. 411, 413 (N.D.Ill.
50. Recovery by plaintiff is also predicated on the
satisfaction of each of four criteria: "the lower-paying
position must require equal skill, effort and responsibility to
that required in the higher-paying position, and must be
performed under similar working conditions." Edmondson, 497
F. Supp. at 413 (emphasis in original).
51. If plaintiff proves that the employer pays workers of one
sex more than those of the opposite sex for equal work, the
burden shifts to the employer to show the differential is
justified under one of the four exceptions. If the employer
establishes one of the four affirmative defenses, it may not be
held liable for any differential in wages. Corning Glass Works
v. Brennan, 417 U.S. 188, 196, 94 S.Ct. 2223, 2229, 41 L.Ed.2d
52. An employer may pay newly-hired employees with greater
experience more than employees who were newly-promoted to that
position, give employees larger raises based on better
performance, or base higher wages on an informal seniority
system without violating the provisions of the Equal Pay Act.
See, e.g., EEOC v. Whitin Machine Works, Inc., 635 F.2d 1095,
1096-97 n. 4 (4th Cir. 1980); EEOC v. Aetna Insurance Co.,
616 F.2d 719, 723-26 (4th Cir. 1980); Herman v. Roosevelt Federal
Savings & Loan Assoc., 569 F.2d 1033, 1036 (8th Cir. 1978);
Marshall v. St. John Valley Security Home, 560 F.2d 12, 17 (1st
53. In this case, plaintiff failed to prove by a
preponderance of the evidence that she was paid less than males
who performed jobs which were substantially equal. To the
extent plaintiff's claims may relate to disparities between the
compensation she received as a Retail Specialist and the
compensation received by males working as Territory Managers,
her claims not only are time-barred, but also must fail because
the record shows that the work of Retail Specialists involved
substantially less responsibility, and required lesser skills
and experience, than that of Territory Managers.
54. To the extent plaintiff's claims rest upon differences
between her compensation as a Territory Manager and the
compensation paid to male Territory Managers, her claims must
fail because defendant proved that any such difference in pay
resulted from the consistent application of a compensation
system which based earnings on seniority, merit, quantity or
quality of production, and other factors other than sex, within
the meaning of the exemptions authorized by the Equal Pay Act.
55. To the extent that any of the foregoing conclusions of
law are deemed to be findings of fact, they are hereby adopted
as findings of fact.
Based on the foregoing findings of fact and conclusions of
law, it is hereby ordered that:
1. Final judgment is hereby entered in favor of defendants
and against plaintiff.
2. Pursuant to Rule 52(b) of the Federal Rules of Civil
Procedure, the Court reserves the right to amend the above
findings and conclusions or make additional findings and
conclusions upon motion of either party made no later than ten
days after entry of this order, and the Court may amend the
IT IS SO ORDERED.