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Employee Complaints Of Pay Inequity Can Trigger Protected Activity Even With No Mention Of “Sex Discrimination”

In Mumm v. Charter Township of Superior, the United States Court of Appeals for the Sixth Circuit held that Plaintiff is entitled to a trial where her employer began the termination process on the same day she threatened suit over a difference in pay between her and a male counterpart even though she did not allege the pay disparity was the result of sex discrimination.

In the lawsuit, Plaintiff alleged violations of Title VII of the Civil Rights Act and Michigan’s Elliot Larsen Civil Rights Act, claiming that she was paid less than her male counterpart for substantially similar work because of her sex and that she was retaliated against after she complained about the alleged sex discrimination.  The District Court granted summary judgment for Defendant, holding that Plaintiff did not clearly allege that the difference in pay was the result of sex discrimination and that Plaintiff could not show that Defendant’s non-retaliatory reasons for her termination were pretexts.  The Court of Appeals reversed, holding that Plaintiff’s threat to sue over the difference in pay was clear enough to qualify as protected activity given that the officials should have known that Plaintiff was charging sex discrimination.

In light of this decision, employers should consider that employee complaints about different treatment among employees could be protected activity even if the employee does not invoke any “magic words” describing the basis for the different treatment. Managers who handle these types of complaints should be trained accordingly.

Alyssa J. Calabrese contributed to this post.

Jackson Lewis P.C. © 2022National Law Review, Volume VIII, Number 114
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Jackson Lewis is a law firm that offers legal advice to employers through the many laws that impact on every aspect of an employer’s decision and ability to develop and implement a strategic, comprehensive preventive labor relations program. We provide labor advice to all employers – whether entirely unionized, entirely union-free or partially unionized – in every industry.

While the National Labor Relations Act has always applied to employees regardless of union representation, the Board’s decisions and initiatives in the...

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