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A federal appeals court has put a pay discrimination suit against the Maryland Insurance Administration back in action.

A three-judge panel at the 4th U.S. Circuit Court of Appeals has ruled, 2-1, that the U.S. Equal Opportunity Employment Commission (EEOC) can move forward with a lawsuit alleging that the insurance regulatory agency may have paid female employees less than it paid male employees holding comparable jobs.

The EEOC has presented evidence in the case, EEOC v. Maryland Insurance Administration (Case Number 16-2408), suggesting that the agency paid three former fraud investigators who are women less than it paid four former fraud investigators with comparable credentials and experience who are men.

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The EEOC showed that the female investigators ended up earning $45,503 to $50,300 per year. The male investigators earned from $47,194 to $51,561 per year.

A judge at the U.S. District Court in Baltimore granted summary judgment in favor of the Maryland Insurance Administration.

Two judges at the 4th Circuit, Circuit Judge Barbara Milano Keenan and Circuit Judge Henry Floyd, overturned the lower-court ruling and agreed to let the EEOC move ahead with the suit.

Keenan and Floyd did not rule on whether they think the fraud investigator pay difference was the result of discrimination, but they say that, because each female plaintiff earned less than at least one other male plaintiff performing substantially equal work, the EEOC had established a “prima facie case” of discrimination under the federal Equal Pay Act.

In law, a “prima facie case” is evidence good enough to seem correct the first time someone looks at it, without making an effort to dig deeper.

“Because the claimants established a prima facie case of discrimination under the [Equal Pay Act], [the Maryland Insurance Administration] was not entitled to summary judgment unless a rational jury could not have rejected MIA’s proffered reasons for the wage disparities,” Keenan writes in an opinion explaining the panel’s ruling.

The Maryland Insurance Administration did present two reasons, other than gender, for the wage disparities, but the evidence for those reasons is not strong enough to require a fact finder to conclude that those two reasons were actually responsible for the pay disparities, Keenan writes.

J. Harvie Wilkinson III, the third judge on the panel, voted to uphold the lower-court ruling. In a dissenting opinion, he blasted his colleagues for ignoring Maryland’s sovereign rights.

“The majority refuses to so much as mention a state’s sovereign interest in its own civil service,” Wilkinson writes. “The place of state governments in our Republic has quite passed it by. Respect for states [as] states fails to merit even the slight courtesies of lip service.”

Given that, legally, the United States still has a federal system, and states still have rights, the EEOC should not have brought such a marginal case against a state, Wilkinson writes.

“State workforces are highly regulated and regimented, and state law provides remedies for gender discrimination in all its forms,” Wilkinson writes. “Simply put, state civil service systems are not hotbeds of gender bias, as this feeble suit makes all too clear.”

The Maryland Insurance Administration suit puts Maryland’s sovereign interest in its own workforce entirely in the hands of federal authorities, Wilkinson writes.

“Here, a federal agency is bringing suit, the federal courts are deciding the suit, and federal law is providing the applicable rule of decision,” he writes. “In combination, this assertion of federal authority diminishes to an unacceptable extent the proper role of states in our constitutional system.”

The majority opinion and the dissent are available here

—Read 10 Worst Districts for Women’s Pay Revealed; Senators Push Paycheck Fairness Act on ThinkAdvisor.

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