Developments In Equal Pay Litigation - 2022 Update

40 | Developments in Equal Pay Litigation © 2022 Seyfarth Shaw LLP complaint was self-defeating in that it acknowledged that the male comparators were given more favorable sales territories. “[Employer] argues that Plaintiffs have pled themselves out of court by alleging that [supervisor] gave them unfavorable territory compared to their male counterparts. . . . [Employer] basically reads the complaint as an admission that Plaintiffs were less productive than their male counterparts.” 329 The court rejected this argument, holding that an employer cannot justify a wage disparity by pointing to actions that are themselves alleged to be discriminatory in nature. The plaintiffs had alleged that taking away the sales opportunities was part of the discriminatory pattern they faced. The Court explained that “[t]aking away sales opportunities cannot defeat a sex discrimination claim when taking away sales opportunities was an act of sex discrimination.” 330 4. Other Affirmative Defenses A “factor other than sex” is the most commonly asserted defense in equal pay litigation across the country. The other defenses are available, however, and can be just as successful for employers. If employers choose to justify a pay disparity based on a seniority or merit system, or on a system that bases pay on the quantity or quality of output, they must be careful that those systems are well documented and communicated to employees. A system that appears ad hoc or that is inconsistently applied risks being met with skepticism by a court. For example, in Mullenix v. University of Texas at Austin , 331 a tenured law professor alleged that she was underpaid compared to her male comparators. The evidence showed that she was the fourteenth- highest-paid of 52 tenured faculty members and the fourth-highest-paid female tenured faculty member. 332 The court held that the EPA allows an employer to pay two comparable employees different salaries if that difference arose from a merit system that rewards workers for outstanding experience, training, and ability, so long as the resulting salary differential is not based upon sex. 333 Such a merit system must be administered “at least systematically and objectively,” while permitting some level of subjectivity as to the weighing of nondiscriminatory factors. Id. The court held that the employer had established its “merit system” affirmative defense because the evidence showed that faculty salaries were set by a Budget Committee that meets each spring to evaluate the work of each tenured faculty member. 334 Their work is guided by the “Standards For Law School Performance Evaluation of Tenured and Tenure-Track Faculty,” which requires that evaluations of tenured faculty are based on three key metrics: research and scholarship, teaching, and service. The Standards explain the meaning of those terms and how faculty will be evaluated with respect to each of them. 335 That process results in a performance rating for each faculty member, which is translated into a raise for each faculty member by the Dean in consultation with the Budget Committee. 336 The court then evaluated the history of pay raises provided to plaintiff and her comparator in the context of that system and concluded that: “Because the University has provided uncontroverted summary judgment evidence that the Budget Committee and the Dean determined faculty members' pay raises on the basis of a merit system, the University has raised a valid affirmative defense under the Equal Pay Act.” 337 329 Id. at *10. 330 Id. at *11. 331 Mullenix v. Univ. of Tex. at Austin , No. 1:19-cv-1203-LY, 2021 WL 5881690 (W.D. Tex. Dec. 13, 2021). 332 Id. at *1. 333 Id. at *6. 334 Id. at *7. 335 Id. 336 Id. at *9. 337 Id. at *16. In an earlier decision, the court also excluded plaintiff’s expert witness, a social science researcher, who sought to provide “social framework” testimony regarding the operation of stereotypes and bias that can lead to workplace discrimination against women. Mullenix v. Univ. of Tex. at Austin , No. 1:19-cv-1203-LY, 2021 WL 4304815, at *2 (W.D. Tex. Sept. 21, 2021). The court held, among other things, that there was simply too great an analytical gap between the general research the expert relied upon and the specific conclusions he was offering about the case. Id. at *6.