Developments In Equal Pay Litigation - 2022 Update

44 | Developments in Equal Pay Litigation © 2022 Seyfarth Shaw LLP the federal EPA with respect to which burden-shifting framework to apply. Prior California precedent had held that the McDonnell Douglas framework should apply to California EPA claims. 366 However, the court relied on the more recent decision in Rizo to find that: “this burden-shifting test is inapplicable to the federal EPA because ‘EPA claims do not require proof of discriminatory intent,’” and, “[l]ike its federal counterpart, the California EPA also does not require proof of discriminatory intent.” 367 Accordingly, a defendant in a California EPA claim must do more than merely “articulate” a legitimate nondiscriminatory reason for a pay disparity, but must instead: “submit evidence from which a reasonable factfinder could conclude not simply that the employer's proffered reasons could explain the wage disparity, but that the proffered reasons do in fact explain the wage disparity.” 368 Applying that framework, the court held that the plaintiff did not need to establish pretext to avoid summary judgment because “summary adjudication on the EPA claim is proper only if Defendant produces ‘sufficient evidence such that no rational jury could conclude but that these proffered reasons actually motivated the wage disparity’ at issue.” 369 Because the employer could not come up with contemporaneous evidence that it had in fact set plaintiff’s and her comparators’ salaries according to the their different qualifications, the court held that a reasonable juror could conclude that those qualifications do not explain the wage disparity. 370 Burden shifting issues aside, establishing pretext is often a highly fact-specific and granular affair. For example, in Clark v. Vivant Solar, Inc. , 371 an HR employee alleged that she was retaliated against when her employer relocated her position and did not offer her the opportunity to transfer along with that relocation after she complained of discriminatory treatment, including wage discrimination. 372 The employer had offered as justification for the relocation that there was benefit to having a regional HR manager physically located within plaintiff’s geographic territory, which would allow for regular visits and more face-to-face interactions. 373 The court held that, while the employer’s proffered justification could explain the relocation itself, it did not explain why plaintiff was not offered the chance to relocate along with that position. 374 Similarly, in Emanuel v. Alabama State University , 375 the employer argued that plaintiff’s compensation was less than his comparator’s due to a “rank adjustment” that was given years earlier to all employees at a time when plaintiff was still an associate professor, but when his comparator was a full professor. 376 However, plaintiff was able to point to a subsequent salary schedule, which was implemented two years after the rank adjustment, that was intended to replace previous salary considerations. 377 The court refused to grant summary judgment for the employer on these facts, holding that “evidence that the 2009-10 [] Salary Schedule replaced all previous salary considerations demonstrates that there is a genuine issue of material fact as to whether the non-discriminatory reasons offered by [employer] are pretextual.” 378 366 Id. (citing Green v. Par Pools, Inc. , 111 Cal. App. 4th 620, 626 (2003)). 367 Id. at *6. 368 Id. *7 (quoting Rizo , 950 F.3d at 1222) (emphasis in original). 369 Id. (quoting Stanziale v. Jargowsky , 200 F.3d 101, 107-08 (3d Cir. 2000)). 370 Id. 371 Clark v. Vivant Solar, Inc. , No. 2:17-cv-144-JNP-JCB, 2020 WL 6873942 (D. Utah Nov. 23, 2020). 372 Id. at *12. 373 Id. at *15. 374 Id. The employer tried to argue that plaintiff had not done enough to keep her position. But the court noted that it was objectively reasonable for her to conclude that was not an option when “she has been told that her supervisor ‘need[ed] her gone,’ . . . that her employment will terminate in 45 days, has been offered a severance package, and has been told that transferring to a new location is not an option.” Id. 375 Emanuel v. Ala. State Univ. , No. 2:17-cv-658-ALB, 2019 WL 3246398 (M.D. Ala. July 18, 2019). In that case, a university professor alleged that he was paid less than a similarly-situated female employee due to discriminatory compensation decisions made by his employer throughout his career. Id. at *1. 376 Id. at *3. 377 Id. 378 Id. Similarly, in Fortenberry v. Gemstone Foods, LLC , No. 5:17-cv-1608-AKK, 2018 WL 6095196 (N.D. Ala. Nov. 21, 2018), a purchasing manager argued that she was discriminated against on account of her gender because she was not paid for weekend work, while her male counterparts were. 378 The company argued that only “production managers” were paid weekend pay and that plaintiff’s role as a purchasing manager was not “pertinent to the plant’s production needs.” Id. at *4. However, this policy had never been discussed with plaintiff before it was applied, and when she did discuss it with the company, she had been given several