Developments In Equal Pay Litigation - 2022 Update

12 | Developments in Equal Pay Litigation © 2022 Seyfarth Shaw LLP failed to establish that pay and promotion practices are uniform across the company, so there was no good reason to rely on aggregated, nationwide statistics. 91 2. Showing That Work Is “Equal” Or “Substantially Similar” To establish a prima facie case under the federal EPA, an employee must establish that they were paid less than an employee of the opposite sex—often referred to as a “comparator”—for “equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.” 92 This “equal work” requirement can present some significant hurdles to putative plaintiffs, especially those hoping to certify sprawling collective or class actions. Some states, however, have adopted different standards, such as California’s standard: “substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions.” 93 Other states apply a “comparable character,” standard, or other standards that are arguably more or less lenient than the “equal work” or “substantially similar work” standards. 94 The exact meaning of these standards is far from a settled matter, even with respect to the federal EPA, which has been in place since 1963. For example, in Savignac v. Jones Day , 95 the District Court for the District of Columbia recently had to clarify that a prima facie EPA claim consists of only two elements, not three. In that case, the court was reconsidering its own earlier decision, which had implicitly adopted a standard that would impose on EPA plaintiffs the initial burden of pleading that they were (1) paid less than employees of the opposite sex, (2) for work on jobs requiring “equal skill, effort, and responsibility” that are “performed under similar working conditions,” and (3) that they actually performed “equal work” on the equivalent job. 96 Quoting Justice Frankfurter, the court noted that “[w]isdom too often never comes, and so one ought not to reject it merely because it comes late,” 97 and overturned its earlier decision that had incorrectly applied a three-element test to determine if the plaintiff in that case had met her pleading burden. In particular, the plaintiff argued she should not have been required to show that she applied the same degree of effort and performance as her chosen male comparators because that was not an element of the prima facie case under the EPA. Rather, those considerations were properly considered as part of an employer’s affirmative defense: “once the plaintiff carries her burden of showing that she was paid less than employees of the opposite sex for working in a job with substantially equal requirements, the burden shifts to the employer to show that the pay differential resulted from some nondiscriminatory consideration, such as seniority, merit, or quantity or quality of work.” 98 The court analyzed the language 91 Id. at 282. Moreover, because the employer allowed individual managers discretion over pay decisions, the court held that “there is no (non-discretionary) uniform causal mechanism for determining pay and promotion operating across the Proposed Collective. This means that there are likely 1,100 defenses to justify why the 1,100 opt-ins were paid as they were. Adjudicating the claims of the proposed collective in a single action would give rise to obvious procedural difficulties and could not assure fair treatment of any party involved.” Id. at 288. 92 29 U.S.C. § 206(d)(1). Federal employees arguably must meet an even higher threshold for proving a prima facie case because controlling Federal Circuit Court authority imposes an extra requirement—that plaintiffs establish that the alleged pay differential was “based on sex.” See, e.g., Gordon v. U.S. , 903 F.3d 1248, 1254 (Fed. Cir. 2018), vacated as moot , 754 Fed. App’x (Fed. Cir. 2019) (affirming the dismissal of two Veterans Affairs physicians’ federal EPA claims because they had not established that the alleged pay differential was “based on sex”; relying on an earlier Federal Circuit case, the court held that this showing was not sufficient to establish a prima facie case because plaintiffs must also show that the “pay differential between the similarly situated employees is ‘historically or presently based on sex,’” but the plaintiffs had not done so and could not “satisfy this requirement merely through an inference drawn from the statutory elements of the prima facie case under the EPA”) (quoting Yant v. U.S. , 588 F.3d 1369, 1372 (Fed. Cir. 2019)). 93 See Cal. Lab. Code § 1197.5(a). 94 See, e.g., Md. Code Ann. Lab. & Empl. §§ 3-304(b)(1)(i). 95 Savignac v. Jones Day , 539 F. Supp. 3d 107 (D.D.C. Apr. 28, 2021). 96 Id. at 109. 97 Id. (quoting Henslee v. Union Planters Nat'l Bank & Trust Co. , 335 U.S. 595, 600 (1949) (Frankfurter, J., dissenting)). 98 Id. at 112.