Developments In Equal Pay Litigation - 2022 Update

10 | Developments in Equal Pay Litigation © 2022 Seyfarth Shaw LLP produce evidence that male employees were entitled to a larger percentage of commissions than she received. 71 Similarly, in Wentzel v. Williams Scotsman Inc. , 72 although the court held that the plaintiff had established that the work of two Account Executives was “substantially equal,” summary judgment was granted to the employer because it turned out that plaintiff actually earned more money than her male comparator. 73 The plaintiff argued that she had to work significantly harder than her male comparator in a manner that was disproportionate to her additional compensation. The court held that: “[e]ven assuming that [plaintiff] had to work harder than [comparator] for her pay, she was still paid more . The EPA’s very text precludes a claim under these circumstances.” 74 Some plaintiffs have quite openly attempted to stretch the boundaries of wage discrimination claims in this way, arguing that they were unfairly paid even if they were unequivocally paid more than comparators of the opposite sex. For example, in Moore v. Penfed Title, LLC , 75 a Vice President of a credit union alleged that he was discriminated against on multiple grounds, including with respect to compensation. Proceeding under Title VII, the plaintiff alleged that he was paid “a relatively low salary” due to discrimination against him, that he was wrongfully denied a 5% year-end bonus, and that his supervisor refused to give him a performance evaluation that would have allowed him to receive a bonus or merit increase. 76 However, plaintiff’s chosen comparators held positions with less responsibility and were each paid less than the plaintiff. 77 His argument was that he was not paid enough above those comparators, due to discrimination. The court rejected that claim: “[Plaintiff] cannot make out the fourth prima facie element of a Title VII unequal compensation discrimination claim with respect to his overall salary. His argument boils down to an objection that he was not awarded enough of a premium above all other [employer] employees for his unique role within the organization. In this respect, the Court will not second guess [employer’s] compensation decisions absent a prima facie showing of compensation discrimination.” 78 In class and collective actions, the identification of a wage disparity is even more complex. The use of statistics to show disparities in pay across employee groups is often critical in such cases. For example, in Spencer v. Virginia State University , 79 the Fourth Circuit affirmed a decision that rejected an attempt by a tenured Associate Professor in the Department of Sociology to use statistics to establish that she was paid less than term-appointed Associate Professors in other departments. The court noted the unique features of academia that present special challenges for the EPA claimant: “[p]rofessors are not interchangeable like widgets. Various considerations influence the hiring, promotion, and compensation of different professorial jobs.” 80 The Fourth Circuit noted that in the academic context, “work is an exercise in intellectual creativity that can be judged only according to intricate, field-specific, and often subjective criteria.” 81 Accordingly, an EPA plaintiff must provide the court with more than broad generalities to 71 Id. at *5 (“Plaintiff has not argued, much less shown, that the male employees were in fact paid more than her.”). 72 Wentzel v. Williams Scotsman Inc. , No. 18-cv-02101-PHX-SMB, 2020 WL 1158547 (D. Ariz. Mar. 10, 2020). The plaintiff was the only female Account Executive employed at a modular office space provider. Her comparator was the only other Account Executive working at the same office, who was male. 73 Id. at *3-4. 74 Id. at *4 (emphasis in original). 75 Moore v. Penfed Title, LLC , No. 1:20-cv-0867, 2021 WL 2004785 (E.D. Va. May 18, 2021). 76 Id. at *3. 77 Id. at *3-4. 78 Id. at *5. 79 Spencer v. Va. State Univ. , 919 F.3d 199 (4th Cir. 2019). The district court had held, among other things, that the plaintiff had failed to establish that those positions were the same, noting that: “the functional responsibilities that comprised ‘teaching a class’ and the skillset required in doing so varied across all three departments.” Spencer v. Va. State Univ. , No. 3:16-cv-989-HEH, 2018 WL 627558, at *9 (E.D. Va. Jan. 30, 2018). But the court also held that the analysis performed by plaintiff’s own expert showed that the university did not suffer from any systemic gender-related wage disparity. Id. at *10. Among other things, plaintiff’s expert found that plaintiff’s comparators were overpaid in comparison to their peers, including both male and female faculty members, and that there was not a statistically significant level of male faculty being paid more than their female counterparts by school. Id . The district court concluded that the “absence of systemic discrimination combined with improper identification of a male comparator suggests a failure to establish a prima facie case.” Id. (quoting Stag v. Bd. of Trs., Craven Cmty. Coll. , 55 F.3d 943, 950 (4th Cir. 1995)). 80 Spencer v. Va. State Univ. , 919 F.3d 199, 204 (4th Cir. 2019). 81 Id. at 205.