Last month, the 4th U.S. Circuit Court of Appeals upheld the dismissal of a lawsuit filed against Lynchburg-based Consolidated Shoe Co., where former employee Ashley Noonan alleged that her employer engaged in sex-based wage discrimination and retaliation.

Noonan worked as a graphic designer, and claimed that another male employee, who was a content creator and part-time photographer, was paid more.

When Noonan was hired, she asked for $46,000 but eventually agreed to $39,000. The company offered another male employee the role “Senior Graphic Designer” at $45,000, but he negotiated to $68,000 to align with his current salary at another company.

In 2019, a co-worker at Consolidated Shoe found the male employee’s paystub and shared it with Noonan. According to the case, “Noonan was shocked by what she saw — [the male employee] made considerably more than she did.” Noonan confronted leadership about the discrepancy and alleged sex discrimination and asked for a raise. She was told it was a “fireable offense” to know about another employee’s salary. Human Resources later confirmed she could not be fired for knowing another employee’s salary.

The company conducted an investigation on the issue of sex discrimination and concluded there was no wage discrimination because the male employee’s compensation aligned with his greater job duties, experience and skills.

Eventually, Noonan and her male peer were terminated in June 2020 over pandemic-related cuts.

The district court dismissed the case, holding that Noonan and the male peer did not perform similar jobs so she could not rely upon him to show a comparator to prove wage discrimination.

On appeal, the former employee moved away from citing the male coworker as a comparator and relied on a “broader theory that women at Consolidated Shoe were categorically paid less than men.”

In upholding its dismissal of the case on appeal, the 4th Circuit explained its disapproval of Noonan’s new theory, citing “back-of-the-envelope math.” The court wrote that Noonan’s broader theory means to her that she “doesn’t need a comparator to create an inference of discrimination because she can prove that Consolidated Shoe would have paid him more than her if he existed.

What evidence does Noonan have for this claim? According to her, statistical evidence about Consolidated Shoe’s pay practices. But what she really has is an email from her boss showing, at most, that — based on some back-of-the-envelope math — among the four members of Noonan’s department at work, only the man was paid at an alleged market rate. And none of the women performed a similar job that would permit inferring discrimination from the pay of these four people.”

The court noted that in general, “the most obvious reason for pay disparity is that the employer values one job less than it does another.” The court acknowledged that “if there’s a male comparator who performs a similar job to the plaintiff yet is paid more, then we may infer that sex discrimination is potentially the reason the plaintiff was paid less. So then the burden shifts to the employer to provide a different explanation.”

In determining comparable jobs, courts look to ‘“whether the employees (i) held the same job description, (ii) were subject to the same standards, (iii) were subordinate to the same supervisor, and (iv) had comparable experience, education and other qualifications — provided the employer considered these latter factors in making the personnel decision.’ Remember, the value of a similarly situated comparator comes from the fact that we can assess disparate treatment after eliminating the obvious explanation for the disparity. So where the comparator performs a dissimilar job, no comparative inference of discrimination can be drawn.”

Under Virginia law and the National Labor Relations Act, employers cannot discipline employees for discussing pay. Employers cannot have a policy prohibiting the discussion of pay. The exception is if individuals in the organization have confidential pay information through their jobs and then they improperly disclose the information.

Employers need to be able to explain why people in comparable jobs are paid differently. It could be due to performance, experience, education, certifications or other legitimate reasons. The organization should conduct an annual audit of compensation to make sure that pay is aligned with market data and to eliminate any pay disparity based on any protected characteristic.