Developments In Equal Pay Litigation - 2022 Update

© 2022 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 11 establish a claim. 82 The Fourth Circuit held that plaintiff’s expert had failed to identify a general disparity between the pay of men and women at the university: “[h]is efforts revealed no statistically significant disparity within each ‘school.’ If anything, this evidence undermines [plaintiff’s] claimed inference of discrimination.” 83 In Bridewell-Sledge v. Blue Cross of California , 84 a California state court based its denial of class certification on a close analysis of the parties’ competing expert reports. 85 The court held that plaintiffs’ expert had failed to apply the proper criteria for assessing the potential wage differential under the California Fair Pay Act because the law only prohibits such wage disparities for employees doing “substantially similar work” when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions. 86 The court rejected plaintiffs’ expert’s model, and denied class certification, holding that it “does not properly analyze the pay rates of putative class members and juxtapose those against employees who perform substantially similar work.” 87 Similarly, in Kassman v. KPMG LLP , 88 the court rejected an employees’ attempt to use statistics to prove classwide wage discrimination because the statistical analysis could not adequately account for the differences among individual employees’ job duties and working conditions. Plaintiffs’ expert performed a regression analysis and found statistically significant differences in compensation between men and women, controlling for job level, experience, education, job location, and performance ratings. 89 But the employer’s expert concluded that no statistically significant disparity exists when employees are appropriately classified according to specialized job categories. 90 The court concluded that plaintiffs had 82 Id. 83 Id. at 206. 84 Bridewell-Sledge v. Blue Cross of Cal. , No. BC477451, 2018 Cal. Super. LEXIS 3879 (Cal. Super. Ct. Aug. 28, 2018). Plaintiffs’ expert performed a regression analysis that sought to take account of race, sex, years of company services, age, and educational attainment to conclude that males were paid more relative to females in a manner that was both large in absolute magnitude of the pay differential, and statistically significant. 85 Id. at *39. California courts may consider statistical evidence as “indicators of a defendant’s centralized practices in order to evaluate whether common behavior towards similarly situated plaintiffs makes class certification appropriate.” Id. at *26 (quoting Sav-On Drug Stores, Inc. v. Super. Ct. , 34 Cal. 4th 319, 333 (Cal. 2004)). Even though there is no requirement under the California Fair Pay Act or the federal EPA for plaintiffs to prove intentional discrimination or discriminatory animus, courts often allow the use of evidence—including expert statistical evidence—that would tend to demonstrate intentional discrimination. See also Storrs v. Univ. of Cincinnati , No. 1:15-cv-136, 2018 WL 684759, at *3 (S.D. Ohio Feb. 2, 2018) (“[Plaintiff] may present facts and argument regarding sex discrimination to the extent these facts (1) prove the elements of her EPA claim, (2) demonstrate that [employer] acted willfully, and (3) rebut [employer’s] affirmative defense that the discrepancy was based on a factor ‘other than sex.’ Although intentional discrimination is not an element of an EPA claim, courts typically allow evidence that demonstrates that the defendant acted willfully or suggests that the defendant’s affirmative defense is pretextual.”) (emphasis omitted) (citing Boaz v. Fed. Express Corp. , 107 F. Supp. 3d 861, 891 (W.D. Tenn. 2015) (“Although intent to discriminate is not a requisite element for making out an EPA claim, a showing of discriminatory motivation may be used to demonstrate that an affirmative defense on which the employer relies is in fact pretextual.”) (quotation omitted); Simpson v. Merchs. & Planters Bank , 441 F.3d 572, 580 (8th Cir. 2006)). 86 Bridewell-Sledge , 2018 Cal. Super. LEXIS 3879, at *44. 87 Id. at *47. Plaintiffs’ expert had attempted to control for location and job category using the EEOC’s EEO-1 categories to establish that any two individuals within the same EEO-1 category were performing “substantially similar work.” Id. at *44-47. The employer’s expert opined that because there are only ten such categories, they would, by necessity, tend to group employees within the same category who are demonstrably not performing “substantially similar work” within the meaning of California law. The employer’s expert noted, among other things, that “over 80 percent of the records in [plaintiff’s expert’s] analytic file fall into a single EEO-1 occupational category, [plaintiff’s expert’s] model has effectively no statistical control to situate employees with respect to their skill, effort and responsibility.” Id. at *45. Without the use of any statistical methodology to assess statutory violations on a class basis, the court would have to “individually review a class member's status and assess whether those employees perform ‘equal work’ under ‘similar working conditions’ or ‘substantially similar work when viewed as a composite of skill, effort, and responsibility.’" Id. at *48. 88 Kassman v. KPMG LLP , 416 F. Supp. 3d 252 (S.D.N.Y. 2018). In that case, plaintiffs sought to bring a class and collective action on behalf of more than 10,000 female Associates, Senior Associates, Managers, Senior Managers/Directors, and Managing Directors within the company’s Tax and Advisory Functions from 2009 to the present. Id. at 259. 89 Id. at 263-64. 90 Id. at 265. Rather, the data “reflects a heavier concentration of men in higher compensated units and heavier concentration of women in lesser compensated units.” Id.