The Equal Pay Act ("EPA") prohibits an employer from "discriminat[ing] … between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex … for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions" unless an employer proves one of four enumerated exceptions to liability. 29 U.S.C. § 206(d)(1). The Code of Federal Regulations applicable to the EPA further provides that "differences in skill, effort or responsibility" do not justify a finding that two jobs are unequal "where the greater skill, effort, or responsibility is required of the lower paid sex." 29 C.F.R. § 1620.14.

At least six Circuit Courts of Appeals have cited these Regulations in stating an employer cannot avoid EPA liability based on "unequal work" where an employee of one gender receives less pay for a position requiring more skill, effort, or responsibility than that of an opposite-sex counterpart. The Fifth Circuit, however, held Petitioners could not show a prima facie EPA claim on that same basis.

The first question presented is:

(1) Does the EPA protect employees who are paid less money for positions requiring more skill, effort, or responsibility than those held by employees of the opposite sex—a question the Federal Regulations and other Circuits have answered affirmatively, but the Fifth Circuit answered negatively here?

Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's … sex[.]" 42 U.S.C. § 2000e-2(a)(1). The Act does not set out any specific evidentiary burdens that must be met, id., and this Court has made clear that Title VII protects employees in unique positions within an organization. Washington Cnty. v. Gunther, 452 U.S. 161, 178-179 (1981). The Fifth Circuit nevertheless found Petitioners could not establish a prima facie Title VII pay-discrimination case because, as the only general counsel and staff attorney at Louisiana State University Health Sciences Center in New Orleans, they could not satisfy the Fifth Circuit's requirement of a "nearly identical" comparator.

The second question presented is:

(2) Does the Fifth Circuit's requirement of a "nearly identical" comparator to establish a prima facie pay-discrimination case improperly circumscribe Title VII's plain language and conflict with the holdings of this Court and other Circuits imposing no comparator requirement at all, much less a "nearly identical" one?

Does the EPA protect employees who are paid less money for positions requiring more skill, effort, or responsibility than those held by employees of the opposite sex?