Developments In Equal Pay Litigation - 2022 Update

© 2022 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 41 Although rarely used, seniority systems are also one of the enumerated affirmative defense to an equal pay claim. For example, in Duke v. City College of San Francisco , 338 an Associate Vice Chancellor of Student Development at a community college alleged that he was paid less than a female counterpart who performed the same work. However, the court held that his chosen comparator had been an employee with the college for over three years before being hired into the same position as plaintiff. Noting that the EPA allows employers to pay unequal wages pursuant to a “seniority system,” the court concluded that “Defendant has submitted undisputed evidence showing that [comparator] had already been a[n] [employer] employee for three years before she was hired to perform the same role as plaintiff. . . . Thus, within the [employer] system, [comparator] had seniority, and it was permissible for her to receive a higher salary than plaintiff.” 339 Proper documentation and consistent application of such systems are critical to establishing these defenses. For example, in McCarty v. Purdue University , 340 an employee in a university’s IT department alleged that she had been paid less than a male comparator during her entire tenure in that position. The employer did not dispute that she had established a prima facie case. But it argued that the difference in pay was due to merit. Plaintiff’s comparator had started at a higher salary because he had previously worked for the university. 341 That difference in pay only grew over time due to how each employee was ranked in the university’s customer relations merit ranking system. If an employee ranked in the bottom 10%, they would not be given a merit increase that year. Plaintiff ranked in the bottom 10% each year but one, whereas her comparator never ranked in the bottom 10% and in fact was ranked in the top 25% multiple years. He therefore received a merit increase each year. Moreover, the facts showed that in the one year when plaintiff did not rank in the bottom 10%, she did receive a merit increase. But it was less, in percentage terms, than what her comparator received, due to their different performance rankings that year. 342 The court was also persuaded by the fact that plaintiff’s poor performance was consistently documented and communicated to her. The court concluded: “[i]t is clear that [comparator’s] salary was impacted by his successful experience during the nine years before [plaintiff] began employment. The Court finds this to be a reasonable differential that is not based on sex and does not believe a reasonable jury could conclude otherwise.” 343 Lack of documentation or evidence of inconsistent application can prove fatal to such defenses. For example, in Brunarski v. Miami University , 344 the District Court for the Southern District of Ohio held that a merit system that used vague criteria that were inconsistently applied could not justify a wage disparity. The court held that the university had failed to establish this affirmative defense because, among other things, the standards for awarding so-called “super-merit” raises were vague and contradictory. 345 There was no evidence to show that the factors cited by the university had been used previously to award super-merit raises or any other type of raise. 346 Moreover, the court found that the university’s application of the factors ostensibly used to justify the super-merit raises were not “commensurate with satisfaction” 338 Duke v. City Coll. of S.F. , No. 19-cv-6327-PJH, 2021 WL 1966599 (N.D. Cal. May 17, 2021). 339 Id. at *8. 340 McCarty v. Purdue Univ. , No. 4:19-cv-43 JD, 2021 WL 3912564 (N.D. Ind. Sept. 1, 2021). 341 Id. at *3. 342 Id. 343 Id. at *5. See also Summy-Long v. Pa. State Univ. , 715 F. App’x 179, 183 (3d Cir.). In that case, the Third Circuit affirmed dismissal of a female physician’s wage claim because, among other things, numerous items in the record “reflected a lack of academic performance in comparison to her colleagues.” Id. Among other things, she had been urged to increase publications and to obtain external funding to support her research. She also “failed to apply to renew her National Institute of Health grant even after being reminded repeatedly for three years by her superior.” Id. The court held that this evidence established that “[t]he difference in [her] salary compared to her male coworkers resulted from, among other things, her lack of publications and failure to obtain external funding.” Id. 344 Brunarski v. Miami Univ. , No. 1:16-cv-311, 2018 WL 618458 (S.D. Ohio Jan. 26, 2018). In that case, two female university professors alleged that they were paid less than comparable men. Among other things, the university attempted to justify the pay disparity as the result of a merit-based system. Id. at *10. The employer argued that plaintiffs’ comparators received larger merit raises because of their involvement in study abroad programs and because of exceptional performance. Id. 345 Id. at *11. 346 Id.