Developments In Equal Pay Litigation - 2022 Update

© 2022 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 43 plaintiff had replaced an Assistant Professor, so there was more money in the budget to pay a higher salary when plaintiff’s comparator was hired. 356 Plaintiff argued that defense should fail as a matter of law, likening it to the discredited “market forces” defense, which attempts to justify a wage disparity on the basis of the different market prices for male workers versus female workers. Or, as the court put it, “defendants cannot avoid liability for paying employees of one sex more than the other by chalking it up to inherently discriminatory market practices.” 357 But the court saw differences between that defense and what the employer was asserting in this case. “Saying we had more money available that year’ is different from saying ‘men are generally paid more in this market.’ The former recognizes financial limitations without regard to a prospective employee's sex, while the latter perpetuates a discriminatory industry practice. Therefore, the court is not willing to say that [employer’s] budget-line defense constitutes a ‘market forces’ argument so as to fail as a matter of law.” 358 The court then considered plaintiff’s arguments about pretext. The court first noted the differences in proving pretext under the McDonnell Douglas framework versus the framework applied under the EPA. According to the court, under the EPA, the defendant always keeps the burden of production and persuasion after a plaintiff has established a prima facie case. The court did acknowledge that several older cases imply that the burden should shift back to the plaintiff to prove pretext after the defendant met its burden to establish an affirmative defense. But the court held this was wrong, relying on the Fifth Circuit’s holding in Lindsley v. TRT Holdings, Inc. to conclude that “the court will always consider pretext if the analysis gets that far, but the burden never shifts back to the plaintiff in an EPA claim.” 359 Accordingly, the impetus was on the employer to prove that the pay disparity can be explained by factors other than sex. The court held that it had not done so. Among other things, the court noted that the employer had chosen not to fix the known pay disparity when it was discovered: “There are genuine factual disputes about whether [employer] violated the EPA, and a jury could even decide that [employer] willfully violated the Act in light of the fact that the university chose not to fix a wage gap over the course of two academic years.” 360 Other courts in the same circuit have relied on the same Fifth Circuit case to draw the opposite conclusion. 361 Patel v. Tungsten Network, Inc. , 362 addressed this issue in the context of California’s EPA statute. In that case, the plaintiff, a client relationship manager, brought suit under the California EPA and the California Fair Employment and Housing Act (“FEHA”), alleging that she was discriminated against as to her compensation and retaliated against for complaining about her pay. 363 The court first granted the employer’s motion for summary judgment on the FEHA claim. The employer had pointed to differences in experience, qualifications, and education to justify the wage disparity, which the court held was a bona fide, non-discriminatory reason. 364 Under the burden shifting regime applicable to FEHA claims, the McDonnell Douglas framework, the burden then shifted back to the plaintiff to establish pretext. The court found that plaintiff failed to do so according to the rather stringent standard applied under McDonnell Douglas : “Plaintiff's assertions fail to rise the level of ‘substantial, responsive evidence’ necessary to show Defendant's bona fide, nondiscriminatory reason for the challenged wage disparity was pretextual.” 365 The court came to a different conclusion regarding plaintiff’s claim under the California EPA, specifically because of the heightened standard that an employer must meet to establish a “factor other than sex” defense under that statute. The court first held that the California EPA should be interpreted in line with 356 Id. at *7. 357 Id. 358 Id. at *8. 359 Id. at *9 (citing Lindsley v. TRT Holdings, Inc. , 984 F.3d 460, 466 (5th Cir. 2021)). 360 Id. 361 See Mullenix v. Univ. of Tex. at Austin , No. 1:19-cv-1203-LY, 2021 WL 5881690 (W.D. Tex. Dec. 13, 2021) (“The burden-shifting framework established in McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973), governs claims under the EPA.”) (citing Lindsley v. TRT Holdings, Inc. , 984 F.3d 460, 466 (5th Cir. 2021)). 362 Patel v. Tungsten Network, Inc. , No. 2:20-cv-7603-SB-JEM, 2021 WL 4776348 (C.D. Cal. Sept. 15, 2021). 363 Id. at *1. 364 Id. at *4. 365 Id. at *5.