The state of Vermont is defending itself against claims of unequal pay between men and women.
It’s the first time a lawsuit has charged that the state violated its own equal pay statutes. Under Vermont law, gender discrimination doesn’t have to be intentional to merit prosecution.
In a summary judgment hearing Wednesday in Washington Superior Court, Judge Helen Toor heard arguments from lawyers representing three female business managers with the Department of Corrections, joined in the suit by the Vermont Human Rights Commission. Their allegations were defended, on behalf of the departments of Corrections and Human Resources, by counsel from the state’s Attorney General’s Office.
Attorneys Karen Richards and Emily Joselon presented the case of plaintiffs Lynne Silloway, Mary Bertrand and Lisa DeBlois. The state violated its own policies first in 2003, when it boosted the pay of a newly hired male employee, Joselon said.
Rather than join the public sector at the standard pay rate for the job, “Mr. Doe” was brought in as if he had 18.5 years of state employment under his belt — a fact of the case that is undisputed.
The sweetener was meant as an incentive to get Doe into place quickly as food service supervisor at the Southern State Correctional Facility in Springfield, which was slated to open in mere weeks, Assistant Attorney General David Groff said.
Doe deserved the salary bump because of his experience — 23.5 years and two degrees in food service — and the exigent hiring circumstances, the Department of Corrections said at the time. The Department of Human Resources agreed, giving DOC the green light to hire Doe “in-range.”
New state employees are almost always hired at entry-level wages for their positions, even if they possess extensive experience in the private sector. The “hire-in-range” policy allows new hires to be paid more when extraordinary circumstances — such a shortage of candidates or exceptional qualifications — merit.
Such was the case with Doe, Groff argued.
But the warden who hired him failed to consider the impact the pay disparity would have on incumbent workers in the same position, Joselon charged.
That’s a required consideration at the time of hire, and it should have been considered again in 2006, when Doe moved from food service supervisor to business manager, she said.
“In this case, the very provision which guards against the kinds of harms that resulted here is what the state failed to do,” Joselon said.
Additionally, in 2003, the warden didn’t fully explore other options that would have avoided the hire-in-range situation, which is meant to be used only in the rarest of circumstances, Joselon said. State officials could have given him a sign-on bonus, or transferred an employee from another facility to get the new facilities food service operations going, in much the same way other positions at the new prison were filled.
Toor said there is a lack of evidence that the warden ever offered Doe the position at the standard entry-level rate.
“I think we all know enough about this topic to know that one of the historic concerns is that men were offered more because they were breadwinners,” Toor said. She cited a reference in the warden’s notes to Doe’s family in New Hampshire.
“(He) apparently made the assumption … that (Doe) wouldn’t accept the lower salary,” Toor said.
Three years after his initial hire, when Doe moved into a more senior managerial role in the business office, the state should have looked back at the justification for his elevated salary, the plaintiffs charge. It was his pay rate in the business office that triggered the equal pay lawsuit.
If it had been deemed legitimate and Doe was considered the best candidate for the new job, DOC could have raised the salaries of his counterparts commensurate with their own experience, Joselon argued. Or if Doe’s qualifications for the new job didn’t justify the raise, DOC could have chosen not to hire him as a business manager, she said.
Instead, DOC followed standards for “salary retention” without asking why his salary was so high to begin with. The effect was to pay Doe, the only male in that position, more than his counterparts, even though he had less experience in state government, and no experience as a business manager.
Doe’s initial hire had adverse impacts on the salaries of both male and female counterparts, Joselon said. Three years later, his second hire — or promotion, as the state frames it — affected only women.
There’s no question Doe had worked for Vermont for fewer years, Groff argued for the state. And the impact of his hire-in-range pay was not fully analyzed, he conceded.
But to assume that implies a gender-based pay inequity is a leap, Groff said.
“There’s just absolutely no basis for that claim,” Groff said.
He said Doe’s qualifications and the quick turnaround needed to get him into place more than justified his starting pay grade. Once set, other state policies kept his raises pegged to that level, Groff said.
The Equal Pay Act is designed to curb subsequent and cumulative impacts from any pay disparity, Toor said.
“What about the point that if you just keep going lock-step with the system that you’ve always had for I don’t know how many decades, you will never alleviate the inequities that have been there from the beginning?” she asked.
It will be up to Toor to decide whether the case plays into that history.
If Toor finds the lawsuit strong enough, she can issue summary judgment in the plaintiff’s favor, thereby skirting a full trial and moving straight to consideration of damages for the women leveling the charges. Alternatively, she could rule in favor of the state, effectively closing the case unless the plaintiffs appeal.
If Toor determines the facts need more investigation and airing, the litigation could continue.
“You will get something in writing from me, but it won’t be tomorrow,” she said.
