## Facts

- The Secretary of Labor sued a Texas bank under the Equal Pay Act (EPA), seeking injunctive relief and back pay for female employees in the bank’s Note Department.
- The Note Department had two teller classifications: one “exchange teller” position at a separate window and multiple “note teller” positions at other windows.
- The Secretary pursued two comparisons: (1) exchange teller pay versus note teller pay and (2) starting pay disparities within the note teller group.
- The exchange teller position involved more complex transactions and greater risk of loss to the bank than the note teller duties.
- A woman previously held the exchange teller job at a lower salary; later, a man held the same position at a substantially higher salary, which the bank attributed largely to his greater seniority.
- Within the note teller group, eight women and one man were hired between 1968 and 1971; the male hire started at $325 per month despite no college or relevant experience, while most women started at $280–$300, some with college and relevant experience.
- The bank asserted an “official seniority and merit system” and also cited subjective assessments (e.g., personality/potential) and market considerations to explain pay differences.
- The district court found no EPA violation, concluding pay differentials were justified by a statutory exception (“a factor other than sex”); the Secretary appealed.

## Issues

1. Whether higher wages for the male exchange teller, compared to a female predecessor and to female note tellers, violated the EPA’s equal pay for equal work requirement.
2. Whether the higher starting wage for the male note teller compared to female note tellers doing substantially equal work was justified by a bona fide statutory defense, including a “factor other than sex.”

## Decision

- The Fifth Circuit affirmed the judgment as to the exchange teller position, upholding the finding of no EPA violation.
- The court reversed as to the note teller positions and remanded for further proceedings and more specific findings under the proper burden-shifting analysis.
- The court held the exchange teller job could be paid more due to materially greater responsibility and risk and, on this record, the district court’s factual findings were not clearly erroneous.
- The court held the Secretary’s evidence regarding the male note teller’s higher starting wage established a prima facie case, shifting the burden to the bank to prove a statutory defense, which the district court had not adequately supported with findings.

## Legal Principles

- To make a prima facie EPA case, the plaintiff must show wage disparity between sexes for jobs requiring equal skill, effort, and responsibility performed under similar working conditions.
- Once a prima facie case is shown, the employer bears the burden to prove the differential is justified by a statutory exception: a seniority system, a merit system, a production-based system, or another factor other than sex.
- Job content controls: differences in responsibility and risk may defeat “equal work” and justify a wage differential.
- A claimed seniority or merit system must be bona fide and actually applied in a non-sex-based manner; conclusory labels are insufficient.
- Subjective evaluations and market explanations may qualify as “factors other than sex” only if supported by concrete, non-pretextual evidence and consistent application.

## Conclusion

The Fifth Circuit upheld the bank’s higher pay for the exchange teller based on greater responsibility and risk but required further proceedings on note-teller pay because the record did not adequately support the conclusion that the male note teller’s higher starting wage was based on a proven factor other than sex.


Brennan v. Victoria Bank & Trust Co., 493 F.2d 896 (5th Cir. 1974)