Lawyers for three female employees say the state of Vermont has violated its own Equal Pay Act. And a Washington County judge will now decide whether the state has run afoul of a law designed to prevent gender-based pay inequities in the workplace.
No one disputes that the man in this case was making more money than his women counterparts for performing nearly identical functions – $6,000 to $10,000 more per year than the three female Department of Corrections employees who filed suit against the state in 2012.
But the reasons for the pay discrepancy are very much in debate. And after a three hour hearing in a Montpelier courtroom Thursday morning, Superior Court Judge Helen Toor must now weigh the evidence and rule whether Vermont government has become the highest-profile violator of a 12-year-old equal pay statute.
“The fact of the matter here is that a far less senior, and less experienced, business manager is being paid thousands of dollars … (more) than more senior and more experienced female business managers for doing the exact same work,” says Emily Joselson, a partner at the Burlington law firm Langrock Sperry and Wool.
Joselson says the case isn’t about rampant misogyny at the Department of Corrections, or even willful favoritism of men over women. But she says the plaintiffs don’t need proof of gender bias in order to win their case.
"The fact of the matter here is that a far less senior, and less experienced, business manager is being paid thousands of dollars ... (more) than more senior and more experienced female business managers for doing the exact same work." - Emily Joselson, lawyer for the three workers
“The EPA is designed to address organizational flaws and employer oversights – precisely those hiring practices that result from inadvertence, or neglect, rather than malice,” Joselson says. “And that’s what we feel was going on here.”
Steve Collier, general counsel for the Vermont Department of Human Resources, says the pay imbalance was the result of a “legitimate business reason,” as the statute requires, and that the man’s private sector experience, not his gender, accounts for the discrepancy.
“And if we can’t make that discretion to recognize talent, to recognize experience, to recognize education, if we can’t do that, the state workforce is going to suffer,” Collier says.
The case centers on an unnamed male employee hired by the department for a food service position in 2003. Lawyers for the state say that, based on his 23 years in the private sector, he was given a salary level usually reserved for longtime state workers.
Dave Groff, the assistant attorney general who argued the case for the state Thursday, said the state faced an urgent need when the man was hired. The new Southern State Correctional Facility was slated to open in weeks, and the state was still without a food services supervisor to oversee the preparation of meals for the hundreds of inmates that would be housed there.
But Joselson says the state never adequately justified the reasons for giving outsized pay to a first-year state employee, and failed to complete an “impact” analysis examining how the man’s high salary might lead to pay imbalances in the future.
Joselson says that when the man left his food services position in 2006 to take a job as a DOC business manager, he was replaced by a first-year state employee – a woman – who was not given the same preferential pay scale. And she says that calls into questions the rationale of the hiring decision back in 2003.
“It’s clear that there were not legitimate organizational needs that justified the 2003 hiring,” she says.
Joselson says that when the male employee was reassigned to a business management position in 2006, he was suddenly making considerably more than female business managers who had been performing similar tasks for a much longer period of time. She says officials failed to consider the legal ramifications of his reassignment.
“What is it going to require us to pay him if he’s in that position? And what does it mean for the other six business managers? Is that going to create a pay disparity?” Joselson says.
Vermont Law School Professor Cheryl Hanna, who died unexpectedly Sunday, had been working closely on the case.
“And she would have been here as one of the three attorneys arguing the case,” Joselson says. “It’s obviously very difficult to move on without her, but we were all inspired by her brilliance and dedication.”
A decision is expected within weeks.
