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Pay difference based on ‘factor other than sex’

A university professor who alleged she was paid less than male colleagues failed to persuade the court the difference in pay was due to her gender. Instead, the court held the difference was based on legitimate factors, including different job responsibilities and work schedules.


Dr. Zoe Spencer, a sociology professor at Virginia State University, sued the university under the Equal Pay Act and Title VII for paying her less than two male professors, allegedly because she is a woman.

After discovery, the district court granted summary judgment for the University (and its former president, Dr. Keith Miller).

Equal Pay Act

Spencer first claims that the disparity between her salary and her chosen comparators’ violates the Equal Pay Act. To prove a violation, Spencer must make an initial showing of three elements: (1) the university paid higher wages to an employee of the opposite sex who (2) performed equal work on jobs requiring equal skill, effort and responsibility (3) under similar working conditions.

Spencer’s choice of two former university administrators, Drs. Michael Shackleford and Cortez Dial, as comparators establishes the first element of her initial showing—the existence of a wage differential. By choosing two of the highest-paid professors at the University, Spencer ensured that her wages were much lower. Yet that same decision precludes her from establishing, as the second element requires, that she and they performed “equal” work requiring “equal skill, effort, and responsibility.”

A litany of concrete differences underscore that Spencer does not perform work equal to that of Shackleford and Dial. First, Shackleford and Dial taught in different departments than Spencer did. Along with serving in different departments, the three professors taught at different class levels at the university. Nor did the professors work equal hours, as the record shows that Shackleford and Dial worked more than Spencer did week-to-week.

In addition to looking at her chosen comparators, Spencer’s expert tried to identify a general disparity between the pay of men and women at the university. But his efforts revealed no statistically significant disparity within each “school.” If anything, this evidence undermines Spencer’s claimed inference of discrimination.

Finally, even if Spencer could meet her initial burden, her claim would still fail because the university established that the salary difference was based on a “factor other than sex.”

Title VII

Having rejected Spencer’s Equal Pay Act claim, we must separately consider her claim of Title VII sex-based wage discrimination. Title VII, in contrast to the Equal Pay Act, requires establishing intentional discrimination. A Title VII plaintiff may make this showing of intentional discrimination using direct or circumstantial evidence or may use the burden-shifting framework of McDonnell Douglas Corp. v. Green.

Title VII requires the compared jobs to be only “similar” rather than “equal,” as required under the Equal Pay Act. For the same reasons we discussed above, Spencer’s broad generalizations cannot even show sufficient similarity to meet her burden under Title VII.

Even if we concluded that Spencer had established a prima facie case of Title VII wage discrimination, her case still could not withstand summary judgment. Once a plaintiff establishes a prima facie case, the burden of production shifts to the employer to proffer a legitimate, nondiscriminatory explanation for the wage disparity. Here, the university satisfies this requirement through its practice of paying administrators 9/12ths of their previous salary. Just as this practice satisfies the Equal Pay Act’s “factor other than sex” affirmative defense, it qualifies as a legitimate, nondiscriminatory explanation under Title VII.

Having proffered a nondiscriminatory explanation, the university shifts the burden back to Spencer to prove that the explanation is merely pretextual for invidious discrimination. Spencer cannot supply any evidence of this.

Spencer also alleges that the university and its former provost engaged in unlawful retaliation because of her complaints about pay disparities. Because the district court correctly found that Spencer cannot establish a prima facie case of retaliation, we do not address the merits of the university’s defenses.


Spencer v. Virginia State University, Appeal No. 17-2453, March 18, 2019. 4th Cir. (Richardson), from EDVA at Richmond (Hudson). Noah Barnett Peters for Appellant, Jimmy F. Robinson Jr. for Appellee. VLW No. 019-2-089, 15 pp.

VLW 019-2-089