Developments In Equal Pay Litigation - 2022 Update

© 2022 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 17 possessed a different level of education, experience, and skills. The court was mindful, however, that when considering a prima facie case, “it is ‘the jobs and not the employees’ that must be compared.” 135 Nevertheless, the court held that plaintiff’s male comparator was able to use his enhanced skills to perform functions of the same position that plaintiff could not do: “As part of his job duties as a Technical Researcher, [comparator] used his computer programming skills and, more specifically, his familiarity with the Matlab program, to perform coding simulations to assist in determining whether proposed solutions for various scientific problems could work outside the laboratory.” 136 Moreover, plaintiff had provided no evidence to dispute the employer’s claim that the Technical Researcher position was changed prior to the comparator’s hire such that it required the programming skills that plaintiff did not possess. 137 Plaintiffs also often turn to “pay bands” or other hierarchical levels within an organization to try to establish that employees within the same band or level perform equal work. Some plaintiffs have had success using such proxies, especially to survive motions to dismiss at the beginning of a lawsuit. For example, in Baker-Notter v. Freedom Forum, Inc. , 138 the court held that a company’s own internal salary review was sufficient to demonstrate comparability among jobs sufficient to survive a motion to dismiss. 139 The complaint pointed to the nonprofit’s own salary survey, which was performed for the alleged purpose of uncovering salary discrepancies. The court held that this was sufficient to suggest that the jobs surveyed were at least comparable: “courts should not require so much detail about similarity at the front end of a lawsuit as to make equal pay laws largely inapplicable to this class of employees.” 140 More often, however, courts look to specific job duties to determine whether work is truly equal, and they will discount formal corporate hierarchies or pay grades if they do not reflect the true nature of the work performed by employees. For example, in Heatherly v. University of Alabama Board of Trustees , 141 the Eleventh Circuit upheld a decision by the District Court for the Northern District of Alabama holding that a job evaluation system, on its own, could not establish a prima facie EPA violation. The Eleventh Circuit agreed with the district court in refusing to credit plaintiff’s claim that the employer valued all jobs within the same pay grade equally, noting that the salaries within plaintiff’s own pay grade ranged widely. 142 After comparing plaintiff’s job duties versus those of her comparators side-by-side, the Eleventh Circuit concluded that, “a reasonable juror could not find that [plaintiff] engaged in work that was substantially similar to that performed by her alleged comparators.” 143 135 Id. at *5 (quoting EEOC v. City Council of Cleveland , No. 88-3726, 1989 WL 54252, at *5, (6th Cir. May 24, 1989)) (emphasis in original). 136 Id. 137 Id. at *6. 138 Baker-Notter v. Freedom Forum, Inc. , No. 18-cv-2499 (RC), 2019 WL 4601726 (D.D.C. Sept. 23, 2019). In that case, a Senior Director of Operations for a political nonprofit organization in Washington DC alleged various claims against her employer, including under the EPA. The nonprofit moved to dismiss, arguing that plaintiff had utterly failed to plead facts sufficient to show that the skills, effort, and responsibilities required of her position and her alleged male comparators were substantially equal. Id. at *9. The district court held that plaintiff’s obligation at the motion to dismiss stage was low; she was not required to “show” anything, but only to allege with some plausibility facts sufficient to state a claim for relief. Id. 139 Id. at *9. 140 Id . 141 Heatherly v. Univ. of Ala. Bd. of Trs. , 778 F. App’x 690 (11th Cir. 2019). In that case, the Director of Human Resources for a university brought a federal EPA claim alleging that she was paid less than three male employees in director-level positions. Plaintiff argued that the university used a job evaluation system, the Mercer System, to establish pay grades for different jobs based on such factors as knowledge and experience, job complexity and creativity, and physical demands and working conditions in accordance with standards determined by the university. Heatherly v. Univ. of Ala. Bd. of Trs. , No. 7:16-cv-00275-RDP, 2018 WL 3439341, at *13 (N.D. Ala. July 17, 2018). Because the use of that system established the same pay grade for her position versus those of her male comparators, she argued that this established the “equal work” prong of her prima facie case. Id. The court disagreed, holding that binding precedent forced it to look at actual job content to determine whether the skill, effort, and responsibility required is substantially equal; it could not merely rely on a job evaluation system. Id. Moreover, because the job evaluation system allowed for wide salary ranges even within the same pay grade, this showed that “an employee’s categorization into a pay grade does not pinpoint that employee’s exact salary and that multiple employees within the same pay grade may have and earn varying salaries.” Id. at *14. 142 Heatherly. , 778 F. App’x at 692. 143 Id. at 693.