Developments In Equal Pay Litigation - 2022 Update

© 2022 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 29 C. Disproving Discrimination: Employers’ Affirmative Defenses Under the burden-shifting framework applicable to the federal EPA, if a plaintiff successfully establishes a prima facie case, the burden shifts to the employer to establish one of the four statutory affirmative defenses, i.e. , that the pay disparity is justified by: (1) a seniority system; (2) a merit system; (3) a pay system based on quantity or quality of output; or (4) a disparity based on any other factor other than sex. 225 1. Proving A Factor Other Than Sex Under the federal EPA, the most common factor relied upon to justify a pay disparity is the catchall “factor other than sex” defense. Employers often point to factors such as levels of education, training, or other qualifications, productive output or performance, and other individually-specific differences as factors that justify pay disparities. The defense is intentionally broad, and so the factors that employers raise under the framework of this defense tend to be quite broad and varied as well. Employers often attempt to justify pay disparities by pointing to their compensation systems, arguing that pay disparities are the result of where employees stand within the compensation hierarchy. For example, in Akerson v. Pritzker , 226 the Bureau of the Census posted a recruiting bulletin that sought candidates to be Partnership Specialists at four salary grade levels. The bulletin specified that candidates must submit separate applications for each grade level. 227 The plaintiff in that case applied only for a position at the second-lowest pay grade. Her chosen comparator applied for the same position at a higher pay grade. He was paid more even though his position involved substantially the same, if not identical, responsibilities. 228 The court held that “Defendant's employment practice of hiring and compensating individuals based on the job grade he or she applies for constitutes a legitimate factor independent of sex.” 229 The plaintiff had not asserted that she was denied the opportunity to apply for her position at a higher grade level, and she plainly had not. Moreover, the employer was able to show that there was at least one female hired into the same position at the same pay grade as plaintiff’s chosen comparator. 230 Accordingly summary judgment was granted in the employer’s favor. While this argument can be successful, it is sometimes undermined by the fact that most compensation systems allow for a level of discretion within different pay bands, and some allow the system to be bypassed entirely. In those cases, courts will sometimes find that employers have not established that the compensation system fully explains the pay disparity. For example, in In Barthelemy v. Moon Area School District , 231 nine male public school teachers alleged that they were paid less than similarly situated female teachers in the same school district. The crux of the employer’s defense was the step-wise compensation program, which was determined by a collective bargaining agreement. 232 According to the district’s agents undergo ten times more training than school crossing guards; (2) they are full-time employees who can be required to work nights, weekends, and overtime, whereas crossing guards are part-time employees who work no more than five hours per day; (3) they have greater responsibilities, including issuing summonses and testifying in court; and (4) they work at different, often busier intersections and sometimes at night); Bloise v. City of N.Y. , 768 F. App’x 103, 138 (2d Cir. 2019) (upholding Miller , concluding: “the [school crossing guard] and [traffic enforcement agent] jobs are not substantially equivalent, as [traffic enforcement agents] must fulfill more requirements, undergo more training, perform all responsibilities, and labor under different and more hazardous working conditions”). 225 29 U.S.C. § 206(d)(1). 226 Akerson v. Pritzker , No. 12-cv-10240-PBS, 2021 WL 2295522 (D. Mass. June 4, 2021). 227 Id. at *1. 228 Id. at *9. 229 Id. at *10. 230 Id. at *9. 231 Barthelemy v. Moon Area Sch. Dist. , No. 2:16-cv-00542, 2020 WL 1899149 (W.D. Pa. Apr. 16, 2020). 232 Id. at *2.