Developments In Equal Pay Litigation - 2022 Update

26 | Developments in Equal Pay Litigation © 2022 Seyfarth Shaw LLP Statistics often play a critical role in class or collective certification decisions. For example, in Ahad v. Board of Trustees of Southern Illinois University , 200 the District Court for the Central District of Illinois initially conditionally certified a collective action of female faculty physicians, but later denied plaintiff’s request for class certification of the same claims under the Illinois Equal Pay Act, Title VII, and the Illinois Civil Rights Act. 201 Plaintiff’s expert had shown that female physicians were paid less at a statistically significant level than similarly situated male physicians. 202 But the court held that this statistical disparity, by itself, was not enough to warrant class treatment; plaintiff must establish the “glue” that can produce a common answer to the questions of whether and why compensation for female physicians is lower than male physicians. 203 The court noted that plaintiff had “not presented any argument that objective factors considered by the Department Chairs or the Dean in determining compensation resulted in the pay disparity.” 204 Plaintiff’s statistical evidence alone, “does not and cannot show whether a common cause existed regardless of the statistically significant showing of pay disparities based on gender.” 205 Later in the case, the court decertified the collective action as well, holding that plaintiff had failed to identify a common policy that caused the alleged discrimination. 206 2. Recent Cases Involving Class Action Certification When plaintiffs proceed under state equal pay statutes, they must meet the more rigorous standards applicable to federal Rule 23 class actions or similar state-specific class action requirements. If they can meet those standards, however, they are often rewarded with a much larger class, because those classes are “opt-out” classes rather than “opt-in” classes. Under the collective action mechanism of the EPA, if putative members of the collective action do not opt into the lawsuit, then they are not a part of the collective action. Class actions, on the other hand, automatically include every employee who meets the class definition unless they affirmatively choose to opt out of the class action. When combined with the arguably more lenient standards for establishing a prima facie case that are available under some state equal pay statutes, this can provide powerful incentive for plaintiffs to pursue a class action under state law, rather than the federal EPA. The biggest development of 2021 in equal pay class action litigation was the class certification decision issued in a massive equal pay case, Ellis v. Google, Inc. 207 In that case, four named plaintiffs brought a 200 Ahad v. Bd. of Trs. of S. Ill. Univ. , No. 3:15-cv-03308, 2017 WL 4330377 (C.D. Ill. Sept. 29, 2017). The court was satisfied that plaintiffs had met their minimal burden to obtain conditional certification at step one of the process because all faculty physicians performed the same job duties involving patient, teaching, and administrative functions. Id. at *4. 201 Ahad v. Bd. of Trs. of S. Ill. Univ. , No. 15-cv-3308, 2018 WL 4350180 (C.D. Ill. Sept. 12, 2018). 202 Id. at *9. 203 Id. at *10. 204 Id. 205 Id. at *11. 206 Ahad v. Bd. of Trs. of S. Ill. Univ. , No. 15-cv-3308, 2019 WL 1433753 (C.D. Ill. Mar. 29, 2019). The plaintiff was allowed to proceed to trial on her individual claim; the court later held, among other things, that “triable issues of fact exist regarding whether [plaintiff’s] and her male comparators' jobs had a ‘common core’ of tasks,” and that the employer had not carried its burden to establish that its merit-based system was a sex-neutral reason for the disparity in pay. Ahad v. Bd. of Trs. of S. Ill. Univ. , No. 15-cv- 3308, 2021 WL 6118239, at *4, 6 (C.D. Ill. Dec. 23, 2021). See also Knox v. John Varvatos Enters., Inc. , 282 F. Supp. 3d 644 (S.D.N.Y. 2017). In Knox , the District Court for the Southern District of New York conditionally certified a collective action of female sales associates. The defendant, a retailer with 22 stores throughout the United States, was alleged to have discriminated against female sales associates by providing male sales associates—and only male sales associates—a $12,000 annual allowance to purchase the Company’s branded clothing to wear to work. Id. at 651. The district court held that the plaintiffs had “easily made” their modest factual showing establishing that they and the putative collective action of women sales associates are similarly situated for purposes of conditional certification. Id. at 654. Critical to the court’s analysis was the fact that plaintiffs were able to point to a written dress policy that was applied across all 22 retail locations, which stated that all male employees received a clothing allowance. Id. at 654-55. A trial was held on plaintiffs’ claims in early 2020. On January 12, 2021, the Court affirmed the verdict of the jury in favor of plaintiffs and refused to grant defendant judgment as a matter of law or a new trial on critical issues of liability, but did allow for a new trial on issues of compensatory and punitive damages. Knox v. John Varvatos Enters., Inc. , No. 17-cv-772 (GWG), 2021 WL 95914 (S.D.N.Y. Jan. 12, 2021). 207 Ellis v. Google, LLC , No. CGC-17-561299, 2021 WL 4169813 (Cal. Super. Ct. May 27, 2021).