Benefits and Compensation

Equal Pay: Was Pay Discrepancy Between Male and Female Scientists Legitimate?

by Barbara J. Koenig, Foster, Rieder & Jackson, P.C.

A scientist who worked for the National Nuclear Security Administration (NNSA) in Los Alamos discovered that a male coworker was making more money than she was for substantially equal work. Accordingly, she filed suit in Albuquerque federal district court, alleging discrimination on the basis of sex under Title VII of the Civil Rights Act of 1964 and violations of the federal Equal Pay Act (EPA).

New Mexico

Discovery of Unequal Pay

“Karen” worked as an industrial hygienist for several government agencies for 12 years. She was hired as a safety and occupational health manager by the NNSA at its Los Alamos field office in 2008. Her male coworker, “Toby,” was classified as a general engineer/physical scientist, occupational series. Together, Karen and Toby oversaw the NNSA’s occupational health and safety programs at the Los Alamos location.

When Karen discovered that Toby was being paid more than she was, she filed a claim with the Equal Employment Opportunity Commission (EEOC). She also filed an internal complaint with the NNSA. The NNSA conducted an internal audit and determined that although Toby had a more scientific and technical role, there was significant overlap between the employees’ duties as they were actually performed. Nevertheless, the NNSA determined that it had not violated the EPA.

Following the audit, supervisors changed the way they delegated assignments to Karen and Toby. Before the audit, the office manager would send e-mails giving assignments to both Karen and Toby so they could divide the work between themselves.

After the audit, the office manager sent the assignments directly to Toby and sent a copy to Karen. Before the audit, Karen and Toby were asked to jointly cover their manager’s duties in his absence. After the audit, only Toby was asked to cover the manager’s duties.

Substantially Equal Jobs

After obtaining no remedy from the NNSA in response to her complaint, Karen filed a lawsuit under the EPA in New Mexico federal district court. The NNSA moved to dismiss the lawsuit, claiming it failed to raise a dispute regarding material facts on which Karen would be entitled to judgment in her favor. After considering briefs submitted by both the NNSA and Karen, the judge dismissed the case without a trial.

The first issue considered by the court was whether Karen and Toby had substantially equal job assignments. “Substantially equal jobs” are defined by the actual requirements of the jobs and the employees’ performance of the jobs, not by titles or classifications.

Each job is evaluated in terms of skill, effort, and responsibility. If the job components (e.g., experience, training, education, ability, physical or mental exertion necessary to perform the job, and responsibility) are substantially equal, then the jobs are substantially equal.

After a lengthy examination of Karen’s and Toby’s jobs as they were actually performed, the court determined that their jobs were substantially equal. Indeed, although the NNSA forcefully argued that Toby’s job was not substantially equal to Karen’s, Toby admitted in his testimony that he could not think of a distinction between the two positions.

Thus, Karen established the first required element of her case—i.e., that employees of opposite sexes were paid differently for performing substantially equal work. The burden then shifted to the NNSA to demonstrate that it had not violated the EPA.

The EPA prohibits employers from discriminating on the basis of sex by paying employees of one sex at a lower rate than employees of the opposite sex for equal work in jobs that require equal skill, effort, and responsibility and are performed under similar working conditions.

There are four statutorily recognized exceptions that permit unequal pay: (1) a seniority system, (2) a merit system, (3) a system that measures earnings by the quantity or quality of production, and (4) a differential based on any factor other than sex.

Factors for Different Pay Were Legitimate

The NNSA explained that Toby was paid more because he had more experience than Karen (27 years as opposed to 12). Toby worked for the NNSA in Oakland, California, for 9 years before he moved to Los Alamos in 2003. Karen worked for other government agencies—but not the NNSA—before 2008. Thus, Toby had approximately 15 more years with the NNSA than Karen did. Lastly, Toby’s experience placed him under a different pay plan than Karen, and the NNSA was able to show that his pay plan, which was created in 2002, was established for legitimate business-related reasons.

Karen argued that the reasons offered by the NNSA to justify the difference in pay were pretextual (not to be believed). She countered the NNSA’s evidence with testimony that supervisors had made derogatory comments about female employees—e.g., “she didn’t look like an astrophysicist.”

The judge found that the comments and anecdotes concerning female scientists were neither numerous nor pervasive. The court held that the NNSA presented legitimate factors that supported the difference in pay. Therefore, the court dismissed Karen’s equal pay lawsuit and sex discrimination claim before trial. Casalina v. Moniz, U.S. District Court, Civ. No. 13-535 KG/WPL (October 27, 2016).


The EPA is designed to eliminate wage discrimination based on sex. There are exceptions for substantially equal work, but they must adhere to the Act’s requirements. If your company maintains a system that provides different pay for substantially equal jobs, examine the system to see whether the reasons supporting it fall within one of the exceptions in the EPA. Otherwise, you may face a lengthy and costly lawsuit based on unequal pay for equal work.

Barbara J. Koenig, a contributor to New Mexico Employment Law Letter, can be reached at

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