Developments In Equal Pay Litigation - 2022 Update

© 2022 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 31 experience, job qualifications, and job performance and were therefore exceptions that were job-related. But the employer’s mistake could not be considered job-related: “Blind adherence to a classification number is actually the opposite of a job-related factor because it is blind to anything akin to job experience, qualifications, or performance.” 244 Because that was the employer’s only explanation for the difference in pay, the court granted summary judgment to the four female plaintiffs. Economic concerns, such as competitive pressures to attract top talent, as well as financial difficulties and corporate cutbacks, are often relied upon as factors other than sex. For example, in Nazinitsky v. Integris Baptist Medical Center, Inc. , 245 a physician, an infectious disease specialist, claimed that her employer violated the EPA by paying her less than other physicians in different specialties, namely a Hospitalist and a Nephrologist. The court found that the employer’s practice of paying physicians based on the market value range of their medical specialty was a legitimate factor other than sex. 246 Although that alone did not account for the entire salary difference—because each physician is compensated within a range associated with their medical specialty—that, coupled with the physicians’ different levels of experience, added up to a bona fide factor other than sex: “[plaintiff’s] specialty placed her in a lower compensation range than her male comparators—creating a wage disparity—and her lack of experience increased that disparity even further.” 247 On April 21, 2021, the district court’s decision was upheld on appeal. 248 The Tenth circuit found that the market compensation for the specialists whom plaintiff was comparing herself to was higher than that provided for her specialty. 249 According to the court’s calculations, that difference alone accounted for roughly 40% of the alleged wage differential. The court then concluded that the remaining part of the differential was explained by differences in levels of work experience: “Common sense tells us as much here. [Plaintiff] was a first-year physician and is comparing herself to physicians with at least seven years’ more experience.” 250 Similarly, in Martin v. Delta County Memorial Hospital District , 251 three female family practice physicians successfully stated a prima facie case of pay discrimination under the EPA. The hospital where they worked argued that the pay disparity vis-à-vis one male comparator was due to market conditions at the time he was hired. 252 The employer presented evidence that, at the time, it had been unsuccessful in trying to hire a family practice physician for under $170,000, and was therefore advised by recruitment firms that it needed to raise its offer to $170,000-$200,000 to be competitive in the market. 253 The comparator accepted at that higher salary. The court found that this was sufficient to establish a factor other than sex defense: “Based upon the uncontradicted evidence that [comparator’s] pay was based upon market conditions and not sex, the Court concludes that no rational jury could find that the pay differential between [comparator] and [plaintiff] were based upon sex.” 254 And in Barnett v. Roanoke County School Board , 255 a public school supervisor alleged that she was paid a lower salary than a male colleague who held a similar administrative position. The employer defended the pay disparity on the basis of the “sense of urgency” that surrounded plaintiff’s comparator’s hiring, including the “late timing of the vacancy and the impending start of the school year,” and that the only 244 Id. at *3. 245 Nazinitsky v. Integris Baptist Med. Ctr., Inc. , No. 19-cv-043-R, 2020 WL 1957914 (W.D. Okla. Apr. 23, 2020). The court assumed without deciding that she had met her burden to establish that she performed work that was substantially equal to her alleged comparators. Id. at *4. It then considered the employer’s affirmative defense that her salary had been based on two factors other than sex: (1) a bona fide, gender-neutral pay classification system based on marketplace value; and (2) employee experience. Id. 246 Id. 247 Id. at *5. 248 Nazinitsky v. Integris Baptist Med. Ctr., Inc. , 852 F. App’x 365 (10th Cir. 2021). 249 Id. at 368. 250 Id. 251 Martin v. Delta Cnty. Mem’l Hosp. Dist. , No. 19-cv-2339-STV, 2021 WL 6112878 (D. Colo. Dec. 23, 2021). 252 Id. at *12. 253 Id. 254 Id. 255 Barnett v. Roanoke Cnty. Sch. Bd. , No. 7:20-cv-663, 2021 WL 5611317 (W.D. Va. Nov. 30, 2021).