Developments In Equal Pay Litigation - 2022 Update

28 | Developments in Equal Pay Litigation © 2022 Seyfarth Shaw LLP California and several other states, an employer can only assert that a wage disparity is due to a factor other than sex if that factor is, among other things, not itself derived from a sex-based differential in compensation, is job related, and is consistent with business necessity. 217 Citing a defendant’s due process right to assert and prove individual affirmative defenses, the employer argued that those additional requirements would make it impossible to decide their affirmative defenses on a class-wide basis: “[employer] argues that it has a due process right to explain the bona fide reasons why certain employees are paid differently than others, including the critical nature of a particular role or the exceptional education or experience of a hire.” 218 The court dismissed this argument, holding that while a defendant may have a right to assert its affirmative defenses, it does not have a due process right to litigate an affirmative defense as to each individual class member. Rather, the Court held, the employer would have to prove its affirmative defenses using a statistical model of proof that relies on “representative testimony, sampling, or other procedures employing a statistical methodology.” 219 Remarkably, the plaintiffs’ theory that the employer’s policy of using prior salary history to set starting salaries did not factor much into the court’s decision as to the California EPA claims. But the court did rely on that policy to certify the disparate impact claims brought under the California Fair Employment and Housing Act. Under that theory of discrimination, an employer violates the law if it implements a facially neutral policy that has a disparate impact on employees of one gender. The court held that the use of prior salary history was that facially neutral policy: “Plaintiffs contend that they will be able to show, based on common evidence, that [employer’s] pattern and practice of assigning women to lower salary levels at the outset of their employment than it assigned comparably educated and experienced men had a disparate impact on women because women had lower prior pay.” 220 The Ellis decision is significant for many reasons, but from the perspective of equal pay litigation, it is perhaps most noteworthy in that it was certified under one of the newly enacted state law analogues of the federal EPA. And the court expressly based its decision on features of that new law, including the different test for determining proper comparators; i.e., the “substantially similar” standard as opposed to the “equal work” standard that appears in the federal EPA. Of course, class certification has long been a part of wage discrimination cases brought under Title VII and its state law analogues. For example, in Abbananto v. County of Nassau , 221 the District Court for the Eastern District of New York certified a class pursuing sex-based wage discrimination claims, even though the class was comprised of both women and men. In that case, male and female Police Communications Operators (“PCOs”) and Police Communications Operators Supervisors (“PCOSs”) alleged that their predominantly female workforce was paid less than the predominantly male Fire Communication Technicians (“FCTs”) and Fire Communications Technicians Supervisors (“FCTSs”), despite performing nearly identical work. 222 The court found that common questions bound the class together, even though the class was made up of both male and female PCOs and PCOSs. 223 The court held that Title VII applies not just to those discriminated against directly, but also to those who suffer the effects of discrimination directed at others: “Under Plaintiffs’ theory of this case, Defendant's challenged system applies to—and therefore aggrieves— all , rather than just female, PCOs and PCOSs, creating common questions sufficient to satisfy commonality.” 224 217 See Cal. Lab. Code § 1197.5(a)(1)-(3). 218 Ellis , 2021 WL 4169813, at *5. 219 Id. at *10. This is a hotly contested issue of class action procedure driven by competing interpretations of the Supreme Court’s seminal decisions in Wal-Mart Stores, Inc. v. Dukes , 564 U.S. 338 (2011) and Tyson Foods, Inc. v. Bouaphakeo , 136 S. Ct. 1036 (2016). 220 Id. at *6 221 Abbananto v. Cnty. of Nassau , No. 19-cv-1102(GRB)(JMW), 2022 WL 326982 (E.D.N.Y. Feb. 3, 2022). 222 Id. at *1. 223 Id. at *6. 224 Id. But see Miller v. City of N.Y. , No. 15-cv-7563, 2018 WL 2059841, at *4-5 (S.D.N.Y. May 1, 2018) (dismissing the claims of a class of over 2,000 female school crossing guards who alleged they were paid less than traffic enforcement agents due to the “stark differences in training, job requirements, and job responsibilities” between the two positions,” noting that (1) traffic enforcement