Developments In Equal Pay Litigation - 2022 Update

42 | Developments in Equal Pay Litigation © 2022 Seyfarth Shaw LLP of those factors. 347 Finally, the court analyzed whether the university had a legitimate business reason for relying on the factors it applied to determine super-merit raises. Given the lack of evidence that the university’s factors had ever been communicated to professors prior to their use, and that they deviated from the standard factors used for other raises, the court held that the university “must show that there was an actual legitimate business purpose of [employer] for its focus on these factors to the exclusion of other factors typically considered when awarding a merit raise under the standard factors.” 348 Having failed to do so, the court concluded that the university had failed to demonstrate the existence of a bona fide merit system. As with the factor other than sex defense, plaintiff’s counsel have begun to attack an employer’s reliance on a “merit system” on the grounds that it is infected with discrimination and therefore invalid as an affirmative defense. For example, in Spellers v. United States , 349 a female computer scientist sued the Department of the Navy, alleging that she was paid less than male co-workers for the same work. The plaintiff had been paid at the GS-11 equivalent pay band, while her comparators had been paid at a GS- 13 level. 350 When plaintiff and her peers were transitioned to a new personnel management system, her pay was flagged by the system, indicating that she was underpaid. 351 She was given a large raise at that point, which was meant to help her catch up with her peers. Thereafter, she received modest pay increases, but still remained at the GS-12 level for several years. 352 The employer argued that the plaintiff’s pay was set pursuant to a sophisticated and gender-neutral merit-based system, called the NAVAIR Science and Technology Reinvention (“STRL”) Personnel Management Demonstration Project. According to the employer, the record showed that plaintiff’s and her comparators’ difference in pay was due to the government’s highly structured and regulated merit system and therefore could not be due to gender. Plaintiff attempted to contest this, arguing that the merit system could not function properly without good data about her actual duties and her performance, both of which she alleged were infected with gender bias. 353 But the court found those arguments to be based on nothing more than speculation: “Because plaintiff acknowledges that the STRL pay system is facially gender-neutral when functioning as intended and with good data, . . . she has conceded the viability of defendant's affirmative defense.” 354 5. Pretext Even if an employer succeeds in establishing one of the enumerated affirmative defenses, a plaintiff may still succeed on an equal pay claim if he or she can show that the proffered reason for the wage disparity is merely a pretext for discrimination. Inconsistent application of work policies, as well as shifting and inconsistent testimony regarding the proffered justifications, are red flags that can lead to a finding of pretext. Most often this is construed by courts as part of the burden-shifting mechanism applicable to EPA claims, meaning that the burden shifts back to plaintiff to establish pretext. But a few recent decisions have cast the exact nature of the burden shifting regime in doubt under both federal and state law, at least in some jurisdictions. In Wilder v. Stephen F. Austin State University , 355 the District Court for the Eastern District of Texas held that EPA plaintiffs never bear the burden to establish pretext. In that case, a female professor alleged that she was paid less than a similarly situated male professor. The employer argued that it had hired plaintiff’s comparator at a higher salary because he had replaced a tenured Full Professor whereas 347 Id. 348 Id. at *12. Although the university had articulated a legitimate reason for those factors, “the same could be said for almost any individual factor it chose to now focus on that somehow relates to teaching, research, or service.” Id. 349 Spellers v. U.S. , No. 18-47C, 2021 WL 5630801 (Ct. Fed. Cl. Dec. 1, 2021). 350 Id. at *2. 351 Id. 352 Id. at *3. 353 Id. at *6. 354 Id. (internal citations omitted). 355 Wilder v. Stephen F. Austin State Univ. , No. 9:20-cv-40-ZJH, 2021 WL 3288303 (E.D. Tex. Aug. 2, 2021).