Developments In Equal Pay Litigation - 2022 Update

© 2022 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 27 class action alleging that their employer had systematically underpaid over ten thousand women employees as compared to men performing the same work. The court initially held that plaintiffs’ class definition was simply too broad in that it failed to allege a common policy or course of conduct applicable to the entire class. Without such a policy, it was impossible to identify class members who had valid claims from those who did not, rendering plaintiffs’ proposed class unascertainable. 208 Plaintiffs then amended their complaint to narrow their proposed class to female employees who worked in any of 30 separate positions, which plaintiffs categorized into six job “families.” 209 They also added allegations that the employer maintained a company-wide policy for setting starting salary that included consideration of an employee’s prior salary. According to plaintiffs, that policy perpetuates a historical pay disparity that exists between men and women and caused female employees to receive a lower starting salary than men in the same job position and level. 210 The court upheld the class definition in the amended complaint, finding that “Plaintiffs allege that [employer] has a company-wide policy for setting compensation that includes considering an employee's prior salary in deciding her starting salary and/or job level,” and that those allegations “are sufficient at this stage to demonstrate that common issues of law and fact predominate over individualized questions.” 211 But the bigger hurdle of class certification remained. On May 27, 2021, the Superior Court of California, San Francisco County, granted class certification. The Court’s decision hinged on the predominance issue; i.e., “whether the issues that may be jointly tried, as compared to those requiring separate adjudication, are so numerous or substantial that the maintenance of a class action would be advantageous to the judicial process or the litigants.” 212 The analysis centered on Plaintiffs’ theory of liability under the California Equal Pay Act. Plaintiffs alleged that the case could be tried as a class action because the employer classifies its employees by job code for the purposes of setting compensation, and that it would be possible to compare the pay of employees in the same job code because they shared the same level of responsibility, skills, abilities, and basic job tasks. 213 The employer argued that even if employees shared the same job code, they were not necessarily performing substantially similar work because they work across many different domains and product areas. The court disagreed, basing its decision on the standard under the California EPA and the standard applied at the class certification stage. The Court held that the “substantially similar” standard does not require that jobs be identical or require exactly the same duties. 214 Moreover, at the class certification stage, it was enough that Plaintiffs and Google had proffered common evidence to argue their positions—directly contrary to each other, to be sure—but nevertheless “common” in the sense that both sides argued their positions largely through the use of expert opinion analysis of the employer’s pay data. 215 Moreover, the court held that “[t]he [California] EPA does not require that each and every plaintiff identify one specific individual as comparator.” 216 The California version of the EPA imposes some additional requirements (as compared to the federal EPA) on employers who hope to rely on the EPA’s catchall “factor other than sex’ affirmative defense. In 208 See Order Sustaining Def. Google Inc.’s Dem. to Pls.’ Class Action Compl. At 4, Ellis v. Google, Inc. , No. CGC-17-561299 (Cal. Super. Ct. Dec. 4, 2017). 209 Am. Compl. ¶¶ 2-3, Ellis v. Google, Inc. , No. CGC-17-561299 (Cal. Super. Ct. Jan. 3, 2018). 210 Id. ¶¶ 40-41. 211 Order Overruling Def.’s Dem. to First Am. Compl. and Den. Alternative Mot. to Strike, Ellis v. Google, Inc. , No. CGC-17-561299 (Cal. Super. Ct. Mar. 27, 2018). 212 Ellis , 2021 WL 4169813, at *3. 213 Id. 214 Id. at *4. 215 Id. at *5. 216 Id. at *8. As noted above, this issue is far from certain under the federal EPA. The Ellis court cited a Sixth Circuit decision, Beck- Wilson v. Principi , in support of this point. But in that case, the court specifically noted that “[e]ach of the plaintiffs has identified a specific male . . . who she alleges is performing substantially equal work but who is receiving higher pay for his work.” 441 F.3d 353, 363 (6th Cir. 2006). The Sixth Circuit also held that an EPA claim does not necessarily fail just “because each [plaintiff] has not identified ‘one specific individual who constitutes a perfect male comparator.’” Id. (quoting Wheatley v. Wicomico County , 390 F.3d 328, 334 (4th Cir. 2004) (emphasis in original). But punting on the question of whether two employees are sufficiently comparable is quite a bit different than what the Ellis court appeared to hold; i.e., that it is not necessary for each plaintiff to identify specific comparators to establish a prima facie case.