Table of Authorities.............................................................................. ii

Statement of Interest............................................................................. 1

Statement of the Issues......................................................................... 2

Statement of the Case........................................................................... 3

A. Statement of the Facts................................................................. 3

B. District Court’s Decision............................................................ 8

Argument............................................................................................. 11

I. ... The district court erred in holding that Sempowich could not establish a prima facie case of discrimination under the EPA where her base salary rate was lower than that of a male comparator, regardless of total compensation....................... 11

II. .. A discriminatory job transfer is actionable under Title VII.. 24

Conclusion........................................................................................... 31

Certificate of Compliance................................................................... 33

Certificate of Service

TABLE OF AUTHORITIES

Cases

Bence v. Detroit Health, 712 F.2d 1024 (6th Cir. 1983)............ 15, 16, 18

Boone v. Goldin, 178 F.3d 253 (4th Cir. 1999).................... 25, 28-29, 30

Brinkley-Obu v. Hughes Training, Inc., 36 F.3d 336 (4th Cir. 1994).. 13, 23

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006).......... 30

Burlington Indus., Inc., v. Ellerth, 524 U.S. 742 (1998).................. 29-30

Corning Glass Works v. Brennan, 417 U.S. 188 (1974)....... 13, 21, 22-23

Ebbert v. Nassau Cnty. No. 05-CV-5445, 2009 WL 935812 (E.D.N.Y. Mar. 31, 2009)....................................................................................... 19

EEOC v. First Baptist Church, No. S91-179M, 1992 WL 247584 (N.D. Ind. June 8, 1992)................................................................................. 21

EEOC v. Health Mgmt. Grp., No. 5:09-CV-1762, 2011 WL 4376155 (N.D. Ohio Sept. 20, 2011).............................................................. 19

EEOC v. Kettler Bros., Inc., 846 F.2d 70, 1988 WL 41053 (4th Cir. 1983)..........................................................................................................

.............................................................................................. 13, 17-18, 23

EEOC v. Md. Ins. Admin., 879 F.3d 114 (4th Cir. 2018)......... 12, 13, 23

Fowler v. Land Mgmt. Groupe, Inc., 978 F.2d 158 (4th Cir. 1992)...... 23

James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371 (4th Cir. 2004).. 25, 28, 29

Jones v. St. Jude Med. S.C., Inc., 823 F. Supp. 2d 699 (S.D. Ohio 2011)............................................................................................................... 19

Keziah v. W.M. Brown & Son, Inc., 888 F.2d 322 (4th Cir. 1989)....... 20

McMellon v. United States, 387 F.3d 329 (4th Cir. 2004).................... 26

Meritor Savs. Bank, FSB v. Vinson, 477 U.S. 57 (1986)....................... 27

Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998) ........... 27

Ortiz-Diaz v. U.S. Dep’t of Hous. & Urban Dev., 867 F.3d 70

(D.C. Cir. 2017).............................................................................. 28, 31

Page v. Bolger, 645 F.2d 227 (4th Cir.1981)......................................... 29

Spencer v. Virginia State Univ., 919 F.3d 199 (4th Cir. 2019)............. 23

Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 566 (2012).............. 27

Wisc. Dep't of Revenue v. William Wrigley, Jr., Co.,

505 U.S. 214 (1992)......................................................................... 30-31

Statutes

Equal Pay Act, 29 U.S.C. § 206(d)(1)............................ 1, 11, 12, 13, 16

Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e.......................... 1

42 U.S.C. §§ 2000e–2(a)(1)............................................. 26, 27, 29

42 U.S.C. § 2000e-16(a).............................................................. 29

Other Authority

29 C.F.R. § 1620.10............................................................................... 14

29 C.F.R. § 1620.12............................................................................... 14

EEOC Compliance Manual, § 10-IV (Dec. 2000).............. 14-15, 23-24

Br. for the United States as Amicus Curiae, Lyons v. City of Alexandria, No. 20-1656 (4th Cir. filed Sept. 22, 2020)................ 25-26

Br. for the Resp’t in Opp’n, Forgus v. Esper, No. 18-942, 2019 WL 2006239 (S. Ct. filed May 6, 2019)...................................................... 26

Br. for the United States as Amicus Curiae, Peterson v. Linear Controls, Inc., No. 18-1401, 2020 WL 1433451 (S. Ct. filed Mar. 20, 2020)...................................................................................................... 26

Fed. R. App. P. 29(a)............................................................................. 2

STATEMENT OF INTEREST

Congress charged the Equal Employment Opportunity Commission (EEOC) with administering and enforcing the Equal Pay Act, 29 U.S.C. § 206(d)(1) (EPA), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. This case raises important questions under both statutes.

First, the district court held that the plaintiff could not establish a prima facie case under the EPA because, although she was paid a lower base salary than a male comparator, her total compensation including sales commissions exceeded the comparator’s over a three-year period. Although the court purported to rely on the EEOC’s regulatory guidelines in so holding, its analysis contravenes the plain language and the statutory purpose of the EPA, and this Court should correct it.

Additionally, although the district court ruled that the plaintiff’s reassignment was an adverse employment action in this case, it held that it was actionable only because the reassignment had “a significant detrimental effect” on her. It is the EEOC’s position that this narrow standard is in tension with the language of Title VII, and that any discriminatory transfer violates the statute. Because the EEOC has a strong enforcement interest in both issues, it offers its views to the Court pursuant to Federal Rule of Appellate Procedure 29(a).

STATEMENT OF THE ISSUES [1]

1. Whether the district court erred in holding that the plaintiff could not establish a prima facie case of discrimination under the EPA where her base salary rate was lower than that of a male comparator, but she earned more in total compensation, including sales commissions, over a three-year period.

2. Whether a job transfer that does not affect pay, benefits, or seniority, but is made for discriminatory reasons, is actionable under Title VII.

STATEMENT OF THE CASE

A. Statement of the Facts [2]

Tracy Sempowich worked as a Regional Sales Manager (RSM) for Tactile Systems Technology, Inc., a Minneapolis-based medical devices company that manufactures compression products. Joint Appendix (JA)- 1556, 1558. Tactile assigns a hierarchy of salespeople to regional areas and districts/territories within those regions, all of which it readjusts as necessary to maximize sales. JA-1557. Each region has, from highest seniority to lowest: an area director, RSM, product specialists, and district managers. Id. RSMs report to a director and are tasked with crafting sales strategies to meet company sales goals, as well as hiring, training, and leading a group of product specialists. Id. Product specialists and district managers sell the product in assigned areas. Id.

Sempowich initially worked as a product specialist in South Florida from 2006 to 2009. JA-1557. She left the company briefly and then returned as a product specialist in 2010. Id. Tactile promoted her to senior product specialist in 2011 and promoted her again to RSM for the Mid-Atlantic region in April 2014. JA-1558. As one of five RSMs, she reported to Vice President of Sales, Bryan Rishe. JA-1558, 1560. Greg Seeling, another RSM, joined the company in September 2014 and oversaw the Southern region. JA-1558.

Tactile pays RSMs a base salary, paid bi-weekly, and production-based sales commissions. JA-1568-69; JA-222. According to Rishe, Tactile assigns base salaries based “primarily” on “management experience and work history.” JA-1568. Tactile paid Seeling a higher base salary than Sempowich each year from 2015 through 2017. JA-1569. In 2015, Tactile paid Seeling $130,000 while Sempowich received $120,000. Id. In 2016, the company paid him $135,000 and Sempowich $130,000. Id. And in 2017, Tactile paid Seeling $142,000 and paid Sempowich $140,000. Id.

RSMs also earned commissions by meeting or exceeding sales goals. JA-1568. In 2015, Seeling earned more in commissions than Sempowich. JA-1569. But in 2016, Sempowich earned $153,332 in commissions while Seeling earned $103,332. Id. The following year, Sempowich again earned more in commissions: $197,334 compared to Seeling’s $162,334. Id.

During Sempowich’s tenure as an RSM, the company’s revenues increased by 29-34% and her Mid-Atlantic region met its revenue goals. JA-1560. Sempowich received sales leadership awards in 2016, 2017, and January 2018. Id. She also received favorable yearly performance ratings and was designated as a “key contributor” in 2015 (the third highest of six rankings), and “major contributor” in 2016 (the second-highest ranking). Id. Seeling received lower ratings of “contributor” in 2015 (the fourth-highest rating) and “key contributor” in 2016. Id.

In January 2018, reportedly because of high employee turnover in the Mid-Atlantic region and slower recruitment than the company desired, Tactile decided to remove Sempowich as RSM for the Mid-Atlantic region and reassign her to manage the company’s head and neck division, which would market a new product. JA-1560, 1563-65. Rishe informed Sempowich in February by phone that Tactile was transferring her to the new position, and that it was going to have Seeling take over the Mid-Atlantic region. JA-1565. Rishe also told her that Tactile was going to promote Seeling to the area director position on March 1. Id. Rishe sent her a job description for the head and neck manager position. Id. Sempowich had supervised fifteen employees as an RSM for the Mid-Atlantic region; no employees would report directly to her as head and neck manager. JA-1584. Sempowich testified that in a subsequent phone conversation, she told Rishe that she viewed the head and neck position as more akin to a sales job and, thus, a demotion. JA-1565. Rishe responded that the position was strategically important to the company, that her skills were right for the job, and that her compensation would be comparable to the RSM job with the same base pay and incentive compensation. JA-1565-66.

Sempowich filed a written complaint with the human resources (HR) department later in February asserting that she had been treated unfairly and discriminated against because of her age and sex. JA-1566. HR conducted an investigation while Tactile tried to convince Sempowich to take the new position. JA-1567. On March 13, Sempowich received a formal offer letter stating that her base salary would remain $150,000 and she would earn $10,000 per month in commissions for six months; Tactile would revisit the incentive plan in August. JA-1568. While Sempowich received stock options as part of her salary as an RSM and was told orally that she would receive them in the new position, the offer letter did not mention stock options. JA-1584. Tactile informed Sempowich that if she did not accept the head and neck manager position, it would terminate her. JA-1569. Sempowich declined the position and Tactile fired her at the end of March. Id.

Sempowich filed suit alleging, inter alia, that Tactile violated the EPA by paying her a lower base salary than Seeling and that it violated Title VII by reassigning her to the head and neck manager position and ultimately firing her because of her sex and sex-plus-age. JA-41-43 (Amended Complaint). Tactile moved for summary judgment, maintaining, in relevant part, that Sempowich could not show a prima facie case under the EPA because she had earned more total income than Seeling when their respective commissions were added to their base salaries. R.42 at 28 (Memorandum in Support of First Motion for Summary Judgment). Tactile also argued that Sempowich’s Title VII claim failed because she did not suffer an adverse employment action. Id. at 16-17.

B. District Court’s Decision

The district court granted summary judgment to Tactile on Sempowich’s EPA claim. JA-1600. Noting that “[b]oth parties consider Seeling an appropriate comparator” for Sempowich, the court “assume[d] without deciding” that “Sempowich satisfies the second and third elements of her prima facie case”—that the plaintiff and comparator performed work requiring equal skill, effort, and responsibilities under similar working conditions. JA-1598. But, the court held, Sempowich did not offer sufficient evidence that her employer paid higher wages to an employee of the opposite sex because Seeling earned a lower salary in total compensation—base salary plus commissions—from 2015 to 2017. JA-1599-1600. The court said it was adopting the EEOC’s definition of “wages,” which includes “all payments made to [or on behalf of] an employee as remuneration for employment.” JA-1598-99 (quoting 29 C.F.R. § 1620.10). The court did not separately address 2015, when Sempowich earned less than Seeling in total compensation. Instead it totaled Sempowich’s yearly earnings and compared them to Seeling’s over multiple years and concluded that, “[a]s applied, no rational jury could find that Tactile paid higher wages to Seeling than it did to Sempowich” because “[f]rom 2015 to 2017, Seeling made approximately $743,000 in base salary and commissions” while “Sempowich made approximately $806,000.” JA-1599.

The court rejected Sempowich’s argument that the court should ignore incentive compensation when comparing her wages to Seeling’s because to do otherwise would frustrate the EPA’s purpose by requiring harder work for commissioned employees with lower base salaries to achieve equal pay. JA-1599-1600. The court gave no reason for rejecting Sempowich’s argument, apart from disagreeing with Sempowich that Keziah v. W.M. Brown & Son, Inc., 888 F.2d 322, 325 (4th Cir. 1989), stood for the proposition that the court should consider base salary and commissions separately. JA-1599-1600. According to the court, Keziah was distinguishable because the commissions in that case were more akin to guaranteed base salaries and additional forms of compensation were not at issue, and the other cases Sempowich cited were “not binding on this court.” JA-1600.

With respect to Sempowich’s Title VII claim, the district court held that there was a genuine issue of material fact as to whether the company’s decision to transfer her to the head and neck manager job was an adverse employment action.[3] JA-1584. According to the court, reassignment and a corresponding change in working conditions may constitute an adverse employment action, but “only if it has a ‘significant detrimental effect’ on the plaintiff.’” JA-1583 (quoting Boone v. Goldin, 178 F.3d 253, 255 (4th Cir. 1999)). The court explained that term’s meaning, adding “[a] lateral transfer that does not affect pay, benefits, or seniority … is not an adverse employment action.” Id. (citing James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 376 (4th Cir. 2004)). The court also noted that “an employee’s perception of the new position is close to irrelevant” and the fact that a new job assignment is less appealing to the employee does not make it an adverse employment action. JA-1583-84. In this case, however, the court emphasized that the head and neck position lacked supervisory responsibilities, while Sempowich had been supervising fifteen employees as an RSM, and Tactile’s suggestion that Sempowich was better suited to the head and neck manager job suggested that the RSM job was “different in character.” JA-1584. The court also noted that the offer letter did not specify that the head and neck manager would receive stock options. Id.

ARGUMENT

I. The district court erred in holding that Sempowich could not establish a prima facie case of discrimination under the EPA where her base salary rate was lower than that of a male comparator, regardless of total compensation.

The EPA makes it unlawful for an employer to “pay[ ] wages to employees … 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.” 29 U.S.C. § 206(d)(1) (emphases added); see also id. (employer “paying a wage rate differential” cannot attempt to comply with EPA by “reduc[ing] the wage rate of any employee”). Once the plaintiff has made this showing, the employer can avoid liability only by proving that the different payment to employees of opposite sexes was made pursuant to one of four statutory affirmative defenses: (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex.” Id. See also EEOC v. Md. Ins. Admin., 879 F.3d 114, 120-21 (4th Cir. 2018) (employer relying on EPA’s statutory affirmative defense must meet “heavy” burden of showing proffered reasons in fact explain the wage disparity).[4]

The district court erred by confusing total wages with wage rate. Specifically, the court erred in basing its ruling on a comparison of Sempowich’s and Seeling’s total compensation because the text of the EPA prohibits an employer from paying a different rate of pay to one sex without reference to total salary. Nothing in the statutory language suggests that a female worker’s aggregate compensation must be less than that of a male comparator for her to bring a claim under the statute.

To establish a prima facie case under the EPA, Sempowich had to make an initial showing of three elements: (1) Tactile paid different 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. Md. Ins. Admin., 879 F.3d at 120 (citing Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974)). The plaintiff creates a presumption of discrimination under the EPA when she establishes a prima facie case. Brinkley-Obu v. Hughes Training, Inc., 36 F.3d 336, 344 (4th Cir. 1994). Thus, in this case, Sempowich bears only the prima facie burden of demonstrating that her rate of pay is less than that of a man and that she performs substantially equal work under similar working conditions in the same workplace. 29 U.S.C. § 206(d)(1); see also EEOC v. Kettler Bros., Inc., 846 F.2d 70, 1988 WL 41053, at *1 (4th Cir. 1983) (unpub.) (citing statute and Corning Glass Works). Because it is undisputed that the RSM jobs are the same, only the first of these elements is at issue.

The EPA itself defines neither “wages” nor “wage rate.” The EEOC’s regulatory guidelines define the term “wage rate,” as used in the EPA, to be “the standard or measure by which an employee’s wage is determined and is considered to encompass all rates of wages whether calculated on a time, commission, piece, job incentive, profit sharing, bonus, or other basis.” 29 C.F.R. § 1620.12. “Wages,” in turn, include “all forms of compensation irrespective of the time of payment, whether paid periodically or deferred until a later date, and whether called wages, salary, profit sharing, expense account, monthly minimum, bonus, uniform cleaning allowance, hotel accommodations, use of company car, gasoline allowance, or some other name.” 29 C.F.R. § 1620.10; see also EEOC Compliance Manual, § 10-IV (Dec. 2000), available at https://www.eeoc.gov/laws/guidance/section-10-compensation-discrimination#10-IV COMPENSATION DISCRIMINATION (Compliance Manual).

Drawing on the statute and case law, the Compliance Manual adds that “[e]qual wages must be paid in the same form,” such as the same hourly wage, and the employer cannot pay a higher hourly wage to a male employee and then attempt to equalize the difference by paying a bonus to a female employee. Compliance Manual § 10-IV-C. As the Sixth Circuit has explained, “Comparison of pay rates entails measuring the amount of pay against a common denominator, typically a given time period or quantity or quality of output.” Bence v. Detroit Health, 712 F.2d 1024, 1027 (6th Cir. 1983).

Along these lines, an employer that pays different amounts to a man than to a woman performing substantially equal work does not violate the EPA if the wage rate is the same. If a male and a female employee performing substantially equal sales jobs are paid based on the same commission rate, then a difference in the total commissions earned by the two workers would not violate the EPA. And if the employer paid men and women different commission rates, a prima facie violation could be established even if the total compensation earned by both male and female workers is the same. Compliance Manual § 10-IV-C; see also Bence, 712 F.2d at 1027 (EPA violation found where employer paid higher commission rate to males than females, even though total remuneration was substantially equal).

It is undisputed that Sempowich and Seeling performed the same job under similar working conditions. The RSMs were paid a bi-weekly base salary for the same number of full-time hours spent selling the company’s medical devices in a given geographic territory. See Bence, 712 F.2d at 1027 (rate of pay is properly measured by “a practical inquiry which looks to the nature of the services for which an employer in fact compensates an employee”). Sempowich met her prima facie burden by offering evidence that would support a finding that she was paid a lower base salary—i.e., a lower rate of pay—for the same number of hours worked. See 29 U.S.C. § 206(d)(1) (forbidding employer from paying employees “at a rate less than the rate at which [it] pays wages to employees of the opposite sex”).

The district court erroneously aggregated the components of Sempowich’s wages to disallow her EPA claim, accepting Tactile’s argument that because Sempowich earned more than Seeling in total compensation from 2015 to 2017, she could not establish a prima facie case. JA-1599.[5] But in 2015, Sempowich earned a lower base salary plus lower commissions, so even under the district court’s view, Sempowich established a prima facie case under the EPA. Additionally, even if Sempowich out-earned Seeling in some years, this does not preclude her EPA claim. In Kettler Brothers, 1988 WL 41053 at *2, this Court reversed the district court’s grant of summary judgment to the defendant. The company conceded that the sales manager jobs were the same. Sales managers were paid a minimum base salary plus a commission for each house sold; male sales managers were paid a higher commission rate than women. Although some men with the company made more than some women, the highest-paid woman earned $52,862.49, more than two male comparators who were paid $50,285.98 and $45,400.54. The district court had ruled that a comparison of gross earnings showed no disparate treatment between female and male sales managers. Id. at *1. In reversing summary judgment, this Court acknowledged that the higher-grossing woman claimant made more in total earnings, but pointed out, “to achieve her higher earnings,” she “had to sell more houses at a lower commission rate than the men.” Id. at *2.

Similarly, in Bence, 712 F.2d at 1027, the Sixth Circuit rejected an “equal total remuneration” argument like that adopted by the district court here. In Bence, women were paid a lower commission rate than men, but they earned as much in total salary because they made more sales—female sales managers were made to sell gym memberships to women, and more women bought memberships. The Sixth Circuit held that Bence established a prima facie case under the EPA because “[e]valuation of employer’s compensation on a ‘per sale’ basis makes it apparent that it paid female managerial personnel at a lower rate than their male counterparts. This is precisely what the Equal Pay Act forbids.” Id. at 1028.

As another court noted, a hypothetical illustrates why the district court’s approach is unworkable. “As a matter of common sense, total remuneration cannot be the proper point of comparison. If it were, an employer who pays a woman $10 per hour and a man $20 per hour would not violate the EPA … as long as the woman negated the obvious disparity by working twice as many hours. [ ] Congress … could [not] have intended such an absurd result.” Ebbert v. Nassau Cnty. No. 05-CV-5445, 2009 WL 935812, at *3 (E.D.N.Y. Mar. 31, 2009). The court in Ebbert held that it was irrelevant that women received total remuneration in excess of certain male comparators if overtime and holiday pay are included because “it is only the rate at which such payments are made that matters.” Id. at *2; see also EEOC v. Health Mgmt. Grp., No. 5:09-CV-1762, 2011 WL 4376155, at *3-4 (N.D. Ohio Sept. 20, 2011) (citing Ebbert and holding that base salary and commission rate are the proper figures to compare, not the total amount of compensation; finding that lower base salaries of two female employees relative to those of a male employee established prima facie case); Jones v. St. Jude Med. S.C., Inc., 823 F. Supp. 2d 699, 756 (S.D. Ohio 2011) (“[T]he focus must be on their respective rates of pay, rather than their total compensation.”).

Courts have had no trouble finding component parts of employee wages unlawful without regard to other types of compensation earned in a particular job. For example, in Keziah, 888 F.2d at 325, the employer compensated sales representatives very similarly to RSMs in this case: base salary (which the company also called a “draw” or “advance against commissions”) plus commission. Keziah, a woman, earned $22,000 annually as an “advance against commissions,” while Dohn, her male comparator, earned $32,500. Id. Both male and female sales representatives earned the same 9-10% in commissions for each sale, and in theory Keziah could have earned more total salary than Dohn if she had been able to sell significantly more. Id. Nonetheless, this Court found, “Keziah … was paid a lower wage for performing the exact same job as Dohn, and she established a prima facie violation of the Equal Pay Act.” Id.[6]

And in Corning Glass Works, the Supreme Court held that the employer violated the EPA when it paid male night inspection workers a higher base wage than female day inspection employees without addressing that the company paid a higher shift differential hourly rate for night inspection work or considering the total compensation male or female inspectors earned. 417 U.S. at 208-09. The Court explained, “If … the work performed by women on the day shift was equal to that performed by men on the night shift, the company became obligated to pay women the same base wage as their male counterparts.” Id. at 208; see also EEOC v. First Baptist Church, No. S91-179M, 1992 WL 247584, at *4 (N.D. Ind. June 8, 1992) (male and female teachers earning the same base salary did not preclude an EPA claim based on male teachers receiving head of household allowance, tuition benefits, and insurance that female teachers did not receive; “[I]t need only be shown that a wage differential exists between similarly situated men and women.”).

The district court’s reasoning also conflicts with the underlying purpose of the Equal Pay Act, which “is broadly remedial, and … should be construed and applied so as to fulfill the underlying purposes which Congress sought to achieve.” Corning Glass Works, 417 U.S. at 208. Sempowich did not forfeit her EPA claim by being successful at her job and earning more in commissions than Seeling did. Because Tactile paid her a lower base salary than Seeling to perform the same job, she has established a prima facie case. To permit the company to escape its obligation to reward equal work with equal wages would frustrate the Congressional purpose behind the EPA.

The district court’s error is perhaps a reflection of imprecise language in some of the case law and in parts of the Commission’s guidance discussing the EPA. For example, the Supreme Court used the term “wages” rather than “wage rate” in articulating the prima facie case in Corning Glass, 417 U.S. at 195. Elsewhere in the decision, however, the Court recognized the statutory text and its focus on wage rate, rather than wages. See id. at 190 n.1 (quoting statute), 206 (“Congress enacted the Equal Pay Act ‘(r)ecognizing the weaker bargaining position of many women and believing that discrimination in wage rates represented unfair employer exploitation of this source of cheap labor.’”), 208 (“Corning was still taking advantage of the availability of female labor to fill its day shift at a differentially low wage rate not justified by any factor other than sex.”) (internal quotations omitted). This Court’s case law uses both terms—wages and wage rate. Compare Spencer v. Virginia State Univ., 919 F.3d 199, 203 (4th Cir. 2019) (EPA plaintiff must show employer paid higher “wages” to employee of opposite sex); Md. Ins. Admin., 879 F.3d at 120; Brinkley-Obu, 36 F.3d at 343 (same); Fowler v. Land Mgmt. Groupe, Inc., 978 F.2d 158, 161 (4th Cir. 1992) (same), with Kettler Bros., 1988 WL 41053 at *1 (“To establish a prima facie EPA claim, EEOC must show that Kettler paid its women sales managers at a rate less than the rate at which it paid men.”). And EEOC guidance also uses both terms. Compare Compliance Manual §10-IV-B, Elements of Claim (stating as part of the prima facie case “the complainant receives a lower wage than paid to an employee of the opposite sex.”), with id. §10-IV-C, Definition of “Wages” and “Wage Rate” (“An employer that pays different wages to a male than to a female performing substantially equal work does not violate the EPA if the wage rate is the same.”).

In this context, the different terminology does not represent a significant difference in meaning. EPA cases where a female worker is earning more in total pay than the male comparator—i.e., where the rate of pay is the sole dispositive piece of her EPA claim—are relatively few and far between. As a factual matter, most EPA cases are about women workers who make less in total wages because of discrepancies in wage rates. Nonetheless, the statutory language, the explanation of wage rate in the Compliance Manual, the Supreme Court’s focus in Corning Glass, the common-sense need to compare wages using the same unit of measurement, and the purpose of the EPA all demonstrate that the district court’s methodology here was erroneous. This Court should correct the court’s flawed calculus.

II. A discriminatory job transfer is actionable under Title VII.

The district court correctly found that Sempowich’s reassignment to the head and neck manager position was an adverse employment action as that term has been defined by this Court’s precedent. Emphasizing that she would lose her supervisory duties and possibly stock options in the new role, and that her responsibilities in the new position would be different in character from her former position, the court deemed it actionable because the reassignment would have had a “significant detrimental effect” on her. JA-1583. That is, the court explained, her transfer would affect “pay, benefits, or seniority.” Id. (citing, e.g., Boone v. Goldin, 178 F.3d 253, 255 (4th Cir. 1999), and James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 376 (4th Cir. 2004)). In the court’s view, had Sempowich merely wished to work in one job and not the other, or had she believed the transfer comprised a demotion, her claim could not proceed, even if the employer transferred her for purely discriminatory reasons. JA-1583-84 (Order at 30-31 citing Boone and James).

The EEOC, together with the Department of Justice, recently filed an amicus brief with this Court explaining why, in the government’s view, the “significant detrimental effect” standard set out in Boone is incorrect. See Br. for the United States as Amicus Curiae at 3-5, Lyons v. City of Alexandria, No. 20-1656 (4th Cir. filed Sept. 22, 2020) (case pending). The Lyons amicus brief, in turn, cited to two filings of the Solicitor General in the Supreme Court in which the United States addressed the scope of the phrase “terms, conditions, or privileges of employment” in § 703(a)(1) of Title VII, 42 U.S.C. § 2000e-2(a)(1), and argued that the phrase is not limited to actions having a “significant detrimental effect.” See Br. for the Resp’t in Opp’n at 11-16, Forgus v. Esper, No. 18-942, 2019 WL 2006239 (filed May 6, 2019) (“[u]nder [a] straightforward reading of the statutory text, “[a]ll discriminatory transfers (and discriminatory denials of requested transfers) are actionable under Title VII.”) (citation omitted); Br. for the United States as Amicus Curiae at 6-8, 15-16, Peterson v. Linear Controls, Inc., No. 18-1401, 2020 WL 1433451 (filed March 20, 2020) (reiterating the same argument in case involving discriminatory working conditions).

The EEOC is mindful of this Court’s rule that “one panel cannot overrule a decision issued by another panel.” McMellon v. United States, 387 F.3d 329, 332-33 (4th Cir. 2004) (en banc). Nonetheless, at an appropriate juncture, the EEOC respectfully urges this Court to reconsider any precedent limiting its interpretation of § 703(a)(1) for the reasons set out in the government’s Supreme Court filings and as explained briefly below.

Section 703(a)(1) bars “discriminat[ion]” based on protected characteristics “with respect to [an individual’s] compensation, terms, conditions, or privileges of employment.” 42 U.S.C. § 2000e-2(a)(1). Congress intended this wording “to strike at the entire spectrum of disparate treatment,” not merely “economic or tangible discrimination.” Meritor Savs. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986) (internal quotation marks omitted); see also Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998) (noting that Title VII’s prohibition on discrimination extends beyond “‘terms’ and ‘conditions’ in the narrow contractual sense” (quoting 42 U.S.C. § 2000e-2(a)(1))).

Title VII does not specially define the phrase “terms, conditions, [and/or] privileges of employment.” As the Supreme Court has explained, “When a term goes undefined in a statute,” the court must “give the term its ordinary meaning.” Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 566 (2012). Under the ordinary meaning of these statutory term, a job position itself is the quintessential “term[]” or “condition[]” of employment, and a formal transfer from one job to another necessarily constitutes a change in the employee’s “terms” or “conditions” of employment.

Thus, any discriminatory transfer based on a protected trait is actionable under Title VII. See, e.g., Ortiz-Diaz v. U.S. Dep’t of Hous. & Urban Dev., 867 F.3d 70, 75 (D.C. Cir. 2017) (“Title VII ‘promises [Ortiz-Diaz] nondiscriminatory consideration for [a no-cost transfer] where consideration is held out as a privilege of employment.’”) (citation omitted); see also id. at 81 (Kavanaugh, J., concurring) (taking the position that a discriminatory transfer or denial of transfer “plainly constitutes discrimination with respect to compensation, terms, conditions, or privileges of employment” (citation omitted)).

As noted above, the district court in this case followed this Court’s precedent, including Boone, 178 F.3d at 255, and James, 368 F.3d at 376 , in setting out a different standard. In Boone, this Court held that discriminatory reassignments are not actionable under Title VII unless the plaintiff provides evidence of a “significant detrimental effect,” which it limited to “decrease in compensation, job title, level of responsibility, or opportunity for promotion.” 178 F.3d at 256-57; see also James, 368 F.3d at 376 (same).

The Boone Court did not examine the statutory text.[7] Instead it based its ruling in part on the “tangible employment action” standard described by the Supreme Court in Burlington Industries, Inc., v. Ellerth, 524 U.S. 742 (1998). See Boone, 178 F.3d at 256. But Boone and other similar cases have relied, in part, on a misreading of the Supreme Court’s decision in Ellerth. Ellerth held that an employer is automatically vicariously liable under agency-law principles for a hostile work environment created by a supervisor when the supervisor’s actions culminate in a “tangible employment action,” meaning “a significant change in employment status.” 524 U.S. at 761, 765. In the absence of such an employment action, Ellerth held, an employer may avoid vicarious liability for a supervisor’s unlawful harassment by establishing an affirmative defense. Id. at 765. Ellerth thus “did not discuss the scope of the general antidiscrimination provision” in § 703(a)(1), Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 65 (2006), much less hold that only “tangible employment actions” are actionable under § 703(a)(1). Quite to the contrary, because Ellerth held that liability may be imputed to employers for hostile work environments created by supervisors, even in the absence of a tangible employment action, it made clear that a tangible employment action is not a necessary ingredient of a discrimination claim.

Boone also rested its conclusion “on our certainty that Congress did not intend Title VII to provide redress for trivial discomforts endemic to employment.” 178 F.3d at 256. The EEOC agrees with the general point that Title VII is not meant to address trivial matters. See generally Wisc. Dep't of Revenue v. William Wrigley, Jr., Co., 505 U.S. 214, 231 (1992) (“maxim de minimis non curat lex (‘the law cares not for trifles’) is part of the established background of legal principles against which all enactments are adopted”). We submit, however, that the job one performs is not trivial, and that any discriminatory job transfer made because of the worker’s protected status likewise cannot be characterized as trivial. Cf. Ortiz-Diaz, 867 F.3d at 81 (Kavanaugh, J., concurring) (“All discriminatory transfers (and discriminatory denials of requested transfers) are actionable under Title VII.”).

CONCLUSION

For the foregoing reasons, the judgment of the district court should be reversed and the case remanded for further proceedings.

Respectfully submitted,

SHARON FAST GUSTAFSON

General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

ELIZABETH E. THERAN

Assistant General Counsel

s/Julie L. Gantz

JULIE L. GANTZ

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 921-2547

julie.gantz@eeoc.gov

CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with the type-volume requirements set forth in Federal Rules of Appellate Procedure 29(d) and 32(a)(7)(B). This brief contains 5,733 words, from the Statement of Interest through the Conclusion, as determined by the Microsoft Word for Office 365 word processing program, with 14-point proportionally spaced type for text and footnotes.

s/Julie L. Gantz

JULIE L. GANTZ

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 921-2547

julie.gantz@eeoc.gov

Dated: February 16, 2021

[1] We take no position with respect to any other issue presented in this appeal.

[2] Because the EEOC does not take a position on any disputes of fact, we base our factual recitation principally on the district court’s October 23, 2020, opinion granting summary judgment to the defendant.

[3] The district court granted summary judgment to Tactile on other grounds. JA-1589-90.

[4] The district court did not address whether Tactile could establish an affirmative defense.

[5] The district court then compounded its error by basing its calculations on Sempowich’s and Seeling’s total compensation across the three years. There is no apparent reason why the court chose to add the three years together.

[6] As noted above, the district court distinguished Keziah as inapposite to what it characterized as Sempowich’s argument that courts “disregard” production-based incentives when conducting EPA analyses for sales personnel. JA-1599. The district court’s reference is somewhat unclear, but it is certainly true that incentive-based payments like commissions are “wages” within the meaning of the EPA. Therefore, an employer that paid different commission rates to employees for the same work on the basis of sex would violate the EPA. The district court was correct that Keziah offers no support for a contrary argument.

[7] Boone, and an earlier case from this Court, Page v. Bolger, 645 F.2d 227 (4th Cir. 1981), were federal sector cases governed by a different Title VII provision with different statutory language than the private sector provision applicable here. Page cited to the federal sector provision, but did not grapple with the different language in the private and federal sector provisions. 645 F.2d at 233. Boone did not mention the difference, citing only the private sector provision, 42 U.S.C. § 2000e-2, and not the applicable federal sector provision, 42 U.S.C. § 2000e-16(a) (making unlawful discriminatory “personnel actions”). See 178 F.3d at 255.