Developments In Equal Pay Litigation - 2022 Update

© 2022 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 19 The variety of factual circumstances or job duties that courts have relied upon to find that work was not “equal” for purposes of an EPA violation are as wide and vast as the American workplace itself. Differences in outcome often come down to the facts plaintiffs or employers can successfully marshal in their favor. To take just a few recent examples: one court decided that newsroom photographers performed equal work, despite variations in the type and amount of video editing required by their individual jobs because, among other things, their performance evaluations showed that they were required to produce similar types of video projects as their comparators. 151 Another held that, even though plaintiff and her alleged comparator held the same job title, their work was not sufficiently similar because her comparator was handling about six or seven different clients and six or seven different service lines compared to plaintiff’s one, and managed more revenue and supervised more employees than plaintiff. 152 Moreover, many courts have been willing to dismiss a plaintiffs’ allegations at the pleading stage where the complaint makes conclusory or boilerplate allegations of similarity without describing job details in sufficient detail. 153 Finally, plaintiffs who pursue their claims under both the EPA and Title VII—and the employers who defend against those claims—must be cognizant of the different standards applied to determine proper comparators under those statutes. Many courts have held that the standards of liability for EPA and Title VII pay discrimination claims are sufficiently similar and should often be decided the same way. 154 However, the Second Circuit recently clarified an important substantive difference between these statutes. In Lenzi v. Systemax, Inc. , 155 the plaintiff had alleged violations of the EPA and Title VII related to the setting of her compensation. The district court dismissed her claims, holding that her Title VII claims, like claims brought under the EPA, required her to show “positions held by her purported male comparators [were] substantially equal to her position.” 156 Plaintiff could not make this showing because she was the only employee who held her job title and duties, so her Title VII claims were dismissed. The Second Circuit acknowledged that its earlier opinion held that “[a] claim of unequal pay for equal work 151 See Galligan v. Detroit Free Press , 436 F. Supp. 3d 980, 993 (E.D. Mich. 2020) (holding that newsroom photographers’ work was equal despite different amounts of time spent editing different levels of video projects: “given the substantial overlap in overall work performed by [plaintiff and comparator], the one modest difference concerning percentage of time that each of them spent editing photos does not compel a finding, as a matter of law, that [plaintiff and comparator] do not perform equal work,” but finding that their work was different than reporters in the same newsroom). See also Crain v. Judson Indep. Sch. Dist. , No. SA-16-cv-832-XR, 2018 WL 5315219, at *11 (W.D. Tex. Oct. 26, 2018) (granting summary judgment to employer where “Plaintiff's job as an aide did not require him to possess professional teaching skills and that other aides and supervisors at Adventure Club were not professional teachers. Adventure Club employees were subject to a different employee manual than ACE teachers. As noted by [employer], Plaintiff's own summary-judgment evidence demonstrates that Adult & Community Education and Adventure club were separate departments and that Adult & Community Education employees such as [comparator] were paid different rates than the Adventure Club employees.”); Stephens v. Bd. of Trs. of the Univ. of S. Fla. , No. 8:17-cv-53-T-23AAS, 2018 WL 4823125, at *3 (M.D. Fla. Oct. 4, 2018) (holding that clinical physician had failed to establish “equal work” because plaintiff’s own argument “about the termination of her administrative stipends—compensation for non-clinical work—renders invalid a comparison between [plaintiff] and her male colleagues. [Plaintiff] spent half her time on non-clinical work; her male colleagues spent all their time on clinical work.”). 152 Whitlock v. Williams Lea, Inc. , No. 16-cv-6347, 2019 WL 1382267, at *5 (N.D. Ill. Mar. 27, 2019) (finding that although Senior Account Managers shared common general duties of supervising direct and indirect reports for one or multiple clients across various service lines and ensuring delivery of the contract services, plaintiff’s comparator’s work was not equal because he supervised many more clients and employees: “[p]erhaps the differences that [employer] identified are somehow insignificant—like maybe it did not take much effort to supervise employees, so the difference in the number of supervisees was insignificant to the job—but [plaintiff] has not provided any such evidence”). 153 See, e.g., Kairam v. West Side GI, LLC , 793 F. App’x 23, 26 (2d Cir. 2019) (upholding district court’s dismissal of EPA claim brought by physician plaintiff because “[t]he [complaint] alleges details about [plaintiff’s] position, including, among other things, that she analyzed patterns to see whether particular doctors were experiencing problems with particular insurers,” and “analyzed denials to improve billing procedures,” but with respect to her comparator, she merely alleged that he was paid to run a practice that “involved administrative duties at [the same employer]”). 154 See, e.g., Gallaway v. Rand Corp. , No. 2:18-cv-01379-RJC, 2020 WL 1984312, at *14 (W.D. Pa. Apr. 27, 2020) (holding that the analysis regarding the third and fourth elements of a Title VII pay discrimination claim were “aided in large part by the reasoning as to the Equal Pay Act claim, supra. As to the third prong, there is a genuine dispute of material fact that Plaintiff suffered an adverse action when she was paid less than her male comparators who performed similar duties. . . . As to the fourth prong, there is sufficient record evidence to allow a reasonable factfinder to conclude that Plaintiff's performance of the same duties under the same level of supervision gives rise to an inference of unlawful discrimination”). 155 Lenzi v. Systemax, Inc. , 944 F.3d 97 (2d Cir. 2019). 156 Id. at 108 (internal citations omitted).