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Maine hospital fights liability for paying female doctor almost 50% less than males

The defendant argues on appeal that requiring comparable pay for comparable work would be ‘devastating’ in rural Maine.

BOSTON (CN) — A panel of First Circuit judges had difficulty Tuesday figuring out whether a Maine mental hospital broke the law by paying female psychologists less than male psychologists, where the business reasons for doing so had nothing to do with sex.

A Maine law says that employers can’t “discriminate … on the basis of sex” by paying women less for comparable work. The question is whether that means that paying women less is always wrong, or whether it’s wrong only if the employer was motivated by sex bias.

Psychologist Clare Mundell and two female colleagues earned $50 an hour working at Acadia Hospital in Bangor, Maine, while two male psychologists earned $90/hour or more, a difference Acadia attributes to legitimate market factors. Mundell’s lawyer, Valerie Wicks of Augusta, argued that the pay difference automatically violated the law.

But U.S. Circuit Judge Kermit Lipez said that there would have been no reason to include the word “discriminate” if the Legislature meant that.

“The statute means what you say if you remove ‘discriminate … on the basis of sex,’” Lipez observed. “It seems to me that the reading you’re defending makes the reference to discrimination entirely superfluous. It has no purpose at all.”

“I think it’s clarifying,” Wicks responded.

“Of what?” asked U.S. Circuit Chief Judge David Barron, an Obama appointee. “This isn’t a seminar. Why did the Legislature bother to do that? It has no operative content.”

“It seems very odd” to assume that “the language has no significance,” Lipez said.

Acadia is appealing after Dr. Mundell prevailed at summary judgment, netting damages of $180,955.90.

Melissa Hewey, who represents the hospital, argued in her brief that upholding the judgment would have “devastating effects.” She argued that Maine is the country’s most rural state, according to the Census Bureau, and employers often need to pay some workers more than others to get them to move to rustic locales in northern Maine, as well as to recruit minorities and compensate for differences in the cost of living and the fact that some employees work from home.

The state Chamber of Commerce noted in an amicus brief that Mundell's judgment could lead to the end of signing bonuses and payment of moving expenses, and ultimately leave people in northern Maine without access to health care.

Defending the award, meanwhile, the ACLU wrote in an amicus brief that the law should be strictly applied because “lower pay often stems not from an employer’s deliberate decision to pay women less, but from deeply rooted implicit biases about the relative value of men’s and women’s work.”

Lipez, a Clinton appointee, seemed unmoved by this debate. “Invoking all these policy concerns doesn’t seem to me all that helpful in addressing what the statute means,” he said.

Hewey, of Drummond Woodsum in Portland, apologized for any “overly flowery language” in her brief.

U.S. Circuit Judge Lara Montecalvo, a Biden appointee who joined the court in September, suggested that the Maine law must cover unintentional discrimination because intentional discrimination is already covered by Title VII and the Maine Human Rights Act.

Hewey replied this wasn’t true because the other laws apply to different employers and have different requirements and damages. Wicks argued, however, that unequal pay is a fundamentally different problem from other sorts of discrimination.

“Unequal pay is harder to figure out,” she said, noting that Mundell worked for Acadia for years without realizing that she was being paid less. In a typical Title VI case, “if you’re fired, you know you got fired,” Wicks added.

The argument went from there into other parts of the Maine law that Hewey described as “a bunch of double negatives that get us tied up in knots.” With the judges apparently undecided as to how to parse the language, she suggested that they punt and certify the question to the Maine Supreme Court, given that no court in Maine has ever addressed the issue.

Judge Lipez, at least, seemed to like that idea. “We do have these questions, and there are good arguments on both sides. You’ve both spent a lot of time in your briefs talking about the policy arguments. Why doesn’t that argue for certification? The stakes are very high, and we can’t give a definitive answer.”

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