Developments In Equal Pay Litigation - 2022 Update

38 | Developments in Equal Pay Litigation © 2022 Seyfarth Shaw LLP Similarly, in McKinley v. United Parcel Service Inc. , 309 the court first held that the plaintiff had established her prima facie case because she had shown that she performed sufficiently equal work to other male employees in the various positions she held during her history with the company, but had earned less. 310 The employer argued that the pay differentials were justified because it had paid her within the pay bands applicable to her positions. But plaintiff recast this as a defense based on her prior wages, noting that “the Seventh Circuit has held that basing pay on prior wages could be discriminatory if sex discrimination led to the lower prior wages.” 311 She argued that her past wages were based on discrimination, pointing to an alleged sexist comment made by a former manager in 1994 that she “chose a family over a career,” and the fact that she was not promoted for eighteen years. But the court found that she had not provided sufficient evidence to show that her past wages were a result of sex discrimination: “The evidence submitted by [employer] supports that it closely followed its pay band structure to determine compensation for its employment positions,” that “[plaintiff] was given raises in-line with the [employer] pay band for Part-Time Supervisors and that upon being promoted to a Specialist, her hourly pay rate increased to be consistent with the Specialist pay band,” and that “[employer] paid [plaintiff] at the top of the pay band for her position before she was promoted to a Specialist.” 312 Relying on Lauderdale , the court concluded that the employer’s use of pay bands was a legitimate neutral factor accounting for the pay disparity because plaintiff was paid according to the pay band of her current and prior positions. 313 And in Kellogg v. Ball State University , 314 the District Court for the Southern District of Indiana held that the Seventh Circuit allowed theories of “salary compression” as a justification for wage disparities. In that case, a female university instructor was told that the reason her salary did not match those of other instructors is because they had started at a higher starting salary, and over time, each instructor had varying percentage increases in pay that had led to the present disparity in pay. 315 The district court pointed to the Seventh Circuit’s reasoning contrary to Rizo , and held that the university’s reliance on salary compression qualifies as a factor other than sex that “comports with current Seventh Circuit precedent.” 316 And in Stice v. City of Tulsa , 317 a city employer tried to justify a pay disparity by arguing that plaintiff’s comparators were started with higher starting salaries, and that its system of percentage- based salary increases provides a non-discriminatory explanation for the differences in pay. 318 Plaintiff argued (citing Rizo v. Young ) that “courts have rejected reliance on higher starting salaries as a ‘job related’ factor that can be used to explain differences in pay between male and female employees.” 319 However, the court held that neither Rizo , nor the Tenth Circuit has held that the use of prior salary history can never be a consideration to justify a pay disparity, just that it cannot be the only consideration. 320 309 McKinley v. United Parcel Serv. Inc. , No. 1:19-cv-2548-TWP-DLP, 2021 WL 4477830 (S.D. Ind. Sept. 30, 2021). 310 Id. at *15. 311 Id. (internal quotations omitted). 312 Id. at *16. 313 Id. 314 Kellogg v. Ball State Univ. , No. 1:18-cv-2564-TAB-TWP, 2020 WL 707846 (S.D. Ind. Feb. 12, 2020). 315 Id. at *1. After plaintiff brought suit, the university defended its pay practices by arguing that plaintiff’s chosen comparator had extremely positive letters of recommendation, 21 years of prior classroom teaching experience, numerous teaching honors and publications, an impressive interview, prior experience teaching AP courses, and, critically for the court’s decision, a high former salary. Id. at *2. The university also cited market forces and salary compression as factors other than sex explaining the pay disparity. Relying on the Ninth Circuit’s reasoning in Rizo , the plaintiff argued that the university’s salary compression theory only served to “perpetuate past wage discrimination against her by pulling it into the present.” Id. at *3 (quotations omitted). 316 Id. 317 Stice v. City of Tulsa , No. 17-cv-261-CVE-FHM, 2018 WL 3318894 (N.D. Okla. July 5, 2018). 318 Id . at *4. The city explained the differences in pay as resulting from tenure, experience, and education level, among other things. Id. at *2. However, the company’s HR department then conducted a salary review of plaintiff’s department, which determined that plaintiff’s salary was significantly below other employees within her job position. Id. Plaintiff’s salary was increased as a result, but not to the level of other male colleagues. 319 Id. 320 Id. (citing and quoting Angove v. Williams–Sonoma, Inc. , 70 F. App’x 500, 508 (10th Cir. July 8, 2003)). The city claimed that it had based starting salaries on other factors, such as education and experience. Id. at *5. After reviewing the relative levels of education and experience between plaintiff and her comparators, the court rejected this defense, holding that although the city had