Developments In Equal Pay Litigation - 2022 Update

© 2022 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 39 As noted above, equal pay plaintiffs have begun to try to expand the logic of the “prior salary” line of cases to attack other factors that employers use to justify a pay disparity, arguing that they are imbued with discrimination and therefore invalid as a factor other than sex. One factor that has increasingly come under attack is the notion that some employees are better negotiators than others. For example, in Duncan v. Texas Health & Human Services Commission , 321 an employer attempted to justify a salary disparity by arguing that a male comparator possessed particularly valuable work experience and the employer had to match his private sector salary. 322 The court rejected that argument, holding that “a reasonable factfinder could reject [employer’s] position that the salary disparity was the result of a factor other than sex and find [employer] discriminatorily applied its negotiation policy by allowing [plaintiff] greater latitude to negotiate.” 323 But in Briggs v. University of Cincinnati , 324 a Compensation Analyst for a university alleged that he was paid less than a female in the same position in violation of the EPA. However, the court held that the employer had established that the wage disparity was the result of a factor other than sex because, among other things, plaintiff’s comparator refused to take the position for less than a salary that was already higher than plaintiff’s at the time of hire. The court held that the university’s proffered reasons to explain the wage disparity, including the comparator’s salary negotiations and higher prior salary, were recognized as legitimate justifications by the Sixth Circuit. 325 And in Grigsby v. AKAL Security, Inc. , 326 the District Court for the Western District of Missouri held salary negotiations, without more, established an employer’s affirmative defense, concluding: “there are no facts which would allow a fact finder to find that [employer’s] decision to pay [plaintiff] more than [comparator] in the Director of Airport Operations position was based on gender because his salary was set through negotiations and he was the best available person for the job, necessitating a higher pay.” 327 Equal pay plaintiffs seem to be expanding this type of attack on employers’ factor other than sex defense, sometimes successfully. For example, in Douglas v. Alfasigma USA, Inc. , 328 a pair of sales representatives alleged, among other things, that they were underpaid compared to their male colleagues. The employer attacked the EPA claims in the complaint, arguing, among other things, that the “offered a gender neutral explanation for [comparator’s] salary that is over $12,000 greater than plaintiff’s, and a reasonable factfinder ‘could’ credit this explanation,” that explanation was “not so convincing that any rational jury would find in favor of defendant on plaintiff’s EPA claim.” Id. See also Thomas v. Gray Transp., Inc. , No. 17-cv-2052-KEM, 2018 WL 6531661, at *7 (N.D. Iowa Dec. 12, 2018) (holding that male dispatcher who had worked for the company as a driver manager and had kept his previous salary when he became a dispatcher meant that the comparator’s “prior work (and salary) for [employer] establish that his higher salary was based on a factor other than sex”); Ouzts v. Leebos Stores, Inc. , No. 1:16-cv-277, 2018 WL 4495217, at *3 (W.D. La. Sept. 19, 2018) (“[I]t is undisputed that in order to recruit [comparator], [employer] agreed to pay [comparator] the same salary and vacation he had been earning at Coca-Cola. [Comparator’s] significant prior experience and demand that his Coca-Cola compensation package be matched are legitimate, non-discriminatory factors that fall within the catch-all exception.”). 321 Duncan v. Tex. Health & Human Servs. Comm’n , No. 17-cv-23-SS, 2018 WL 1833001 (W.D. Tex. Apr. 17, 2018). In that case, two female nurses and one male nurse applied and were hired into the same nursing position but at different salary levels. Id. at *1. The employer’s usual practice was to offer each applicant the minimum starting salary for the position and begin salary negotiations from there. Id. However, the male applicant was offered a higher salary initially because of his higher private sector salary. Id. at *2. The female employees argued that the male employee was paid more solely because of his gender and his prior salary. Id. at *3. 322 Id. 323 Id . at *4. The court noted that “it is an open question in the Fifth Circuit whether negotiation even qualifies as a ‘factor other than sex,’” noting that “several circuits have found that employers may not seek refuge under the ‘factor other than sex’ exception where the defendant’s sole justification for a pay disparity is an applicant’s prior pay.” Id. at *4 n.3 (citing Rizo v. Yovino , 887 F.3d 453 (9th Cir. 2018), rev’d , 139 S.Ct. 707 (2019)) . 324 Briggs v. Univ. of Cincinnati , No. 1:18-cv-552, 2020 WL 5760437 (S.D. Ohio Sept. 28, 2020). 325 Id. at *7. 326 Grigsby v. AKAL Security, Inc. , No. 5:17-cv-6048-DGK, 2018 WL 3078769 (W.D. Mo. June 21, 2018). In that case, a privately- contracted airport security screener alleged, among other things, two claims under the federal EPA. The employer did not dispute her prima facie case, but argued that the wage disparity could be explained by the fact that her and her comparators’ salaries were set through salary negotiations. Id. at *7. 327 Id. ; see also Smith v. Office of the Att’y Gen., State of Ala. , No. 2:17-cv-00297-RAH, 2020 WL 4015622 (M.D. Ala. July 16, 2020) (finding that employer met its burden to establish that wage disparity was due to factor other than sex where the evidence showed that male comparators had “made it known that they had no interest in positions at the OAG if their overall compensation was not commensurate with what they were earning at the FBI”). 328 Douglas v. Alfasigma USA, Inc. , No. 19-cv-2272, 2021 WL 2473790 (N.D. Ill. June 17, 2021).