Developments In Equal Pay Litigation - 2022 Update

© 2022 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 13 of the EPA closely, noting that it prohibits employers from paying different amounts “for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.” 99 Under plaintiff’s interpretation, which was adopted by the court, the part of that clause that appears after “equal work,” is meant to define that phrase and is therefore in that sense equivalent to “equal work”; the clause was not intended to state two separate requirements, such that plaintiffs would have to show that they performed equal work and that their jobs were also “equal” or similar as defined by the second part of that clause. 100 The court readily acknowledged that this interpretation was “not obvious from the text alone,” nevertheless, it held that that interpretation best accorded with the Supreme Court’s seminal decision, Corning Glass Works v. Brennan . 101 Among other things, the Supreme Court had examined legislative history and found that Congress decided to “refine the ‘definition of equal work’ by ‘incorporating the language of job evaluation into the bill,’” and did so by “amending the original text of the bill, which required equal pay ‘for equal work on jobs the performance of which required equal skills,’ to take its present form, requiring equal pay ‘for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.’” 102 The court was careful to clarify that its decision does not mean that job performance is unimportant at the prima facie stage. Rather, “[p]erformance matters at the prima facie stage, not because an employee who works less hard fails to engage in ‘equal work,’ but because both the formal requirements of the job and the work that those employed in the job actually perform are relevant to the job classification.” 103 The court concluded that “a prima facie EPA claim has two elements—unequal pay and working in a ‘substantially similar’ ( i.e. , substantially equal) job.” 104 One of the most significant open questions in equal pay litigation is how courts will interpret the “substantially similar” standard that was created by several new state laws, as compared to the “equal work” standard found in the federal law. At least one court has held that there is no daylight between those standards, despite the slight difference in wording. In an unpublished opinion, Pak v. Github, Inc. , 105 the California Court of Appeal for the First District held that the new California standard was actually meant to realign California law with the federal standard. In that case, a former associate general counsel alleged that she was underpaid compared to her boss, the general counsel, and another female comparator who did not share plaintiff’s Asian heritage, a vice-president of law and policy. The court began its analysis by deciding how it should apply California’s “substantially similar” work standard. The court held that the 2016 revision to California’s equal pay law “did not materially alter the definition of ‘equal work’ or the analysis of that issue reflected in prior state and federal cases,” but instead, “the amended standard was very close to that which has long been applied by courts under the federal Equal Pay Act.” 106 Rather than changing the standard applied under the federal EPA, the court held that the law “simply brought that section in line with case law under the federal EPA.” 107 Applying that standard, the court held that plaintiff failed to establish that her comparators performed substantially similar work. Among other things, it found that the general counsel had been at the company for much longer, had performed admirably in his role, and always had considerably more responsibility than plaintiff. 108 The court found similarly with respect to plaintiff’s other comparator, noting that the vice president of law and policy performed different work than an associate general counsel, that she had “broad responsibilities in 99 Id. (quoting 29 U.S.C. § 206(d)(1)). 100 Id. at 112-13. 101 Id. at 112 (citing Corning Glass Works v. Brennan , 417 U.S. 188 (1974)). 102 Id. at 113-14 (quoting Corning Glass Works , 417 U.S. at 199) (internal citations omitted). 103 Id. at 116. 104 Id. 105 Pak v. Github, Inc. , No. A159585, 2021 WL 3660375 (Cal. App. Aug. 18, 2021). 106 Id. at *4 (citing 29 U.S.C. § 206(d)). 107 Id. at *5. 108 Id. at *5-6.