Nurse practitioners, though demonstrating likely discrimination, cannot pursue class action
In Halabicky, et al. v. University of Michigan, a group of female nurse practitioners (NPs) sought class action status for their claim that they were victims of gender discrimination under the Elliott-Larson Civil Rights Act. The nurse practitioners alleged that they performed essentially the same job as (predominantly male) physician assistants (PAs), but for substantially less pay. The federal trial judge felt compelled to deny them class action status, even though he felt that they had presented facts that strongly implied discrimination.
The judge noted that while the nurse practitioners were a bargaining unit within the University system and constituted a reasonable "class" in terms of homogenous treatment, they were being compared with physician assistants who were retained, compensated and "defined" on an individual basis within various departments of the University system. Given that NPs and PAs are "entirely different medical certifications," and that PA jobs are defined and compensated on a departmental basis, the NPs could not prove discrimination affected their entire class in a similar manner: each NP would have to prove discrimination separately by a comparison with PAs within her department.
The Court noted that NPs were compensated on a bargained step basis, with the 2008 steps ranging from $72,000.00 to $88,000.00. They remain eligible for overtime pay, with these figures translating into pay for three of the Plaintiffs in the range of $106,000.00 to $116,000.00. PAs, on the other hand, are compensated in accordance with various Department's budgets and needs on a market basis. In non-Human Resource terms, this translates to "lucrative practices pay PAs better than less lucrative Departments," with the 2007 base salary figures ranging from $67,000.00 to $130,000.00.
The Court acknowledged that each of the female NPs had identified male PAs within their respective departments, who earned signicantly more than the NPs, although performing similar or identical duties. The Court also confirmed that the NPs had presented expert analysis of salary figures that documented an annual salary difference of $8-10,000.00 between male and female workers performing similar duties, even when taking into account years of service, education and years in title. The expert calculated that the odds of the gender difference identified occurring by chance alone was about "one in a million".
Despite these statistical differences, which he felt suggested evidence of gender discrimination, the federal judge concluded that the female plaintiffs could not meet the established standards for treating all University Health System NPs as a single class: there were simply too many variables between the women's employment circumstances to qualify them all for unified analysis under class action court rules.