Developments In Equal Pay Litigation - 2022 Update

20 | Developments in Equal Pay Litigation © 2022 Seyfarth Shaw LLP under Title VII . . . is generally analyzed under the same standards used in an EPA claim.” 157 But the court clarified that “a Title VII plaintiff alleging a discriminatory compensation practice need not establish that she performed equal work for unequal pay,” as is required by the EPA. 158 “[A]ll Title VII requires a plaintiff to prove is that her employer ‘discriminate[d] against [her] with respect to [her] compensation . . . because of [her] . . . sex.” 159 Discriminatory pay claims can be brought successfully under Title VII even if the plaintiff cannot show a purported comparator of the opposite sex earned more. But these differences in law are not always enough to save a plaintiff’s prima facie case; the standard under Title VII is not toothless. For example, in Calicchio v. Oasis Outsourcing Group Holdings, L.P. , 160 a Chief Human Resources Officer alleged that she was paid less than males who worked in other roles that reported directly to the CEO: the Executive Vice President and Chief Financial Officer, the Chief Operating Officer, the Chief Sales Officer, and the Chief Information Officer. The court held that the plaintiff could not state a prima facie case of wage discrimination under the EPA based on those comparators: “While Plaintiff and each of the comparators are high-level executives, the record shows they undertook distinct primary tasks and maintained differing portfolios of responsibility.” 161 The court recognized that “Plaintiff's failure to establish a prima facie case under the EPA reflects a persistent problem faced by members of protected classes serving in high-level executive positions.” 162 The court then went on to analyze plaintiff’s claim of gender discrimination under Title VII, noting that “[i]t is true that the burden of showing the similarity of work performed by a female plaintiff and a male comparator is ‘more relaxed’ under Title VII than under the EPA.” 163 However, the court held that under Title VII, plaintiff still had to show that she and her proffered comparators were similarly situated in all material respects. In addition to the different duties that were dispositive to her EPA claim, the court held that she was not “similarly situated” because she did not share the same employment history; her comparators had worked for the employer decades longer than plaintiff, “a difference in employment history that alone prevents them from being ‘similarly situated’ to Plaintiff.” 164 B. Significant Class And Collective Action Decisions Unlike the EEOC, which can bring lawsuits on behalf of a class of aggrieved individuals without meeting the requirements for class certification, private litigants must establish that their equal pay lawsuits can be decided on a collective or class-wide basis. The procedures for establishing a collective action under the federal EPA are governed by the opt-in procedures of the Fair Labor Standards Act (“FLSA”). Those procedures can confer a significant litigation advantage to plaintiffs because the standard applied at the conditional certification stage is much more lenient than the standards applied to certify a class action under Rule 23 of the Federal Rules of Civil Procedure or its state-law analogues. 1. Recent Cases Involving Collective Action Certification Section 216(b) of the FLSA allows an action under the EPA to proceed “by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.” 165 The only statutorily- mandated procedural prerequisite to bringing a collective action is that: “no employee shall be a party 157 Id. at 109 (quoting Tomka v. Seiler Corp. , 66 F.3d 1295, 1312 (2d Cir. 1995)). 158 Id. at 110. 159 Id. (quoting 42 U.S.C. § 2000e-2(a)(1)). 160 Calicchio v. Oasis Outsourcing Grp. Holdings, L.P. , No. 19-cv-81292-RAR, 2021 WL 3123767 (S.D. Fla. July 22, 2021). 161 Id. at *8. Among other things, the court held that the duties and skills of a Chief Human Resources Officer differed materially and were more “narrow” than her comparators’ positions. 162 Id. at *11. 163 Id. at *16 (quoting Rollins v. Ala. Comm. Coll. Sys. , 814 F. Supp. 2d 1250, 1267 (M.D. Ala. 2011)). 164 Id. at *17 (quoting Lewis v. City of Union City, Ga ., 918 F.3d 1213, 1228 (11th Cir. 2019)). 165 See 29 U.S.C. § 216(b) (providing a private right of action “by any one or more employees for and on behalf of himself or themselves and other employees similarly situated”).