Developments In Equal Pay Litigation - 2022 Update

© 2022 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 45 However, in Moore v. Baker , 379 the employer argued that a pay differential alleged by a Director of Student Support Services at a community college was justified by a number of factors other than sex, including plaintiff’s comparator’s prior salary, additional federal grant funds available, his higher level of education and experience, and the non-tenure track nature of plaintiff’s position. 380 The court held that this satisfied the employer’s burden to establish an affirmative defense to plaintiff’s claims. The plaintiff then tried to prove that her employer’s stated reasons were merely pretext for discrimination, alleging that the college had simply reverse-engineered her comparator’s salary and arguing that it was based entirely on his last, highest salary at a different university. 381 The court noted, among other things, that the college had posted for plaintiff’s comparator’s position on several occasions with different salary ranges. Its first attempt offered a lower salary and did not generate enough qualified candidates. When it posted again at a higher salary range, it was able to attract a pool of qualified candidates. The court concluded: “considering these facts, expecting parity between a salary needed to retain an employee and a salary needed to recruit an employee with similar experience is not justified.” 382 Some courts have focused more heavily on an employer’s state of mind to decide the pretext analysis. Evidence of direct discrimination is often enough to cast an employer’s stated reasons for a pay disparity in doubt. For example, in Egelkamp v. Archdiocese of Philadelphia , 383 an Executive Secretary with the employer’s Office of Capital Projects alleged wage discrimination claims. The court first held that it could not conclude as a matter of law that plaintiff’s chosen comparator was insufficiently similar to her. Likewise, the court could not conclude, as a matter of law, that the employer’s proffered justifications did not meet its burden to shift the burden of proof back to plaintiff: “The [employer] contends [comparator] was paid more because he was more qualified, had more years of service with the [employer], and had significant experience with supervising employees and managing departments. . . . It also argues [comparator] had significantly greater responsibilities than [plaintiff]. . . . Taking the [employer’s evidence as true, it points to sufficient facts to meet its relatively light burden.” 384 Plaintiff pointed to a number of facts to establish pretext, including comments made by her supervisor that could be seen as demeaning to the employer’s female General Counsel (“when you hire a female as your general counsel, there's a head problem, an ego problem”), among other things. The court held that although this and other statements were ambiguous and subject to competing interpretations, it was nevertheless enough to send the issue of pretext to the jury: “A reasonable jury, weighing the credibility of the relevant witnesses, could find that [plaintiff] was paid less than [comparator] because of her gender even though there was substantial similarity between their responsibilities and relevant experience. When the record evidence is considered as a whole and reviewed in the light most favorable to [plaintiff], a factfinder could, at minimum, disbelieve the [employer’s] reasons for paying [plaintiff] less than [comparator].” 385 different reasons for why she did not receive weekend pay. Moreover, she presented evidence to show that the company applied its policy inconsistently, pointing to, among other things, a maintenance manager who did receive weekend pay and whose role was not essential to production. 378 Id. The court held that plaintiff had established a colorable basis for a jury to conclude that the policy was pretext for gender discrimination: “a reasonable jury could find that [employer’s] inconsistent application of its weekend pay policy and its shifting reasons for why it did not pay [plaintiff] for weekend work show that [employer’s] policy is pretext for a gender- based reason for the pay differential.” Id. 379 Moore v. Baker , No. 2:18-cv-00311-KD-B, 2020 WL 4934274 (S.D. Ala. July 20, 2020). 380 Id. at *10. 381 Id. at *11. 382 Id. at *12 (emphasis in original). See also Anderson-Strange v. Nat’l R.R. Passenger Corp. , No. 17-cv-1859-RGA, 2019 WL 2438842, at *4-5 (D. Del. June 11, 2019) (rejecting a claim that the reclassification of a manager’s position to a lower pay grade was merely pretext for discrimination where it was done pursuant to a restructuring plan, there was no evidence that that plan had been inconsistently applied, and where plaintiffs’ proffered comparators managed more stations across a larger geographic territory, and they managed direct reports that were spread across those multiple stations—factors that were consistent with plaintiff’s employer’s rationale for reclassifying her position into a lower pay grade). 383 Egelkamp v. Archdiocese of Phila. , No. 19-cv-3734, 2021 WL 1979422 (E.D. Pa. May 18, 2021). 384 Id. at *6 (internal citations and quotations omitted). 385 Id. at *7.