Developments In Equal Pay Litigation - 2022 Update

© 2022 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 55 The Fifth Circuit held that the plaintiff had “put forth a prima facie case of sex discrimination,” and stated “[i]f there is a good explanation for that disparity, [employer] is required to put one forth if it wishes to prevail in this litigation. [Employer] failed to do so. Yet the district court granted summary judgment to [employer] anyway.” 471 The Fifth Circuit pointed to the fact that plaintiff had established that she was paid less than her predecessors in the same position, and “[n]o more is needed to establish a prima facie case.” 472 The court also held that the case did not present the “unusual circumstances” that might warrant departure from the usual rule regarding an “establishment” under the EPA. However, the Fifth Circuit held that the same analysis does not apply under Title VII, or to plaintiff’s state law claims, and faulted the district court for failing to address that issue in the context of those statutory schemes: “Those statutes contain no ‘establishment’ requirement. Yet the district court did not address whether [plaintiff] established a prima facie case under Title VII and the Texas Labor Code based on male food and beverage directors at different [employer] locations.” 473 Similarly, in Black v. Barrett Business Services, Inc. , 474 discussed in more detail above, the District Court for the District of Idaho held that the plaintiff did not work in the same establishment as all but one of her comparators because the other managers worked at another branch. 475 In the Ninth Circuit, that decision depends not just on the geographic distance between offices, but also on “the nature of the services provided and the degree of central administration, such as budgeting, hiring, and day-to-day management.” 476 The court found that there was no reason to combine the branches in this case, because, among other things, the branches were managed independently, had their own sales and profitability goals, each serviced and solicited distinct clients, and that there was never any significant overlap in the daily operations. 477 Accordingly, for purposes of the EPA—but not Title VII—the plaintiff was limited to just one comparator. 4. Who Is An “Employer” Under The EPA? One issue that is frequently litigated in EPA lawsuits is whether one or more entities can be considered the “employer” of a complaining employee. Often that determination depends on what test is used to determine joint employment. Under Title VII, subject to some enumerated exceptions, an “employer” means “a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person.” 478 The EPA uses the broader definition found in the FLSA, which defines an “employer” as “any person acting directly or indirectly in the interest of an employer in relation to an employee . . . .” 479 An “employee” is defined as “any individual employed by an employer,” 480 and the term “employ” means “to suffer or permit to work.” 481 Together, those definitions have been interpreted as “the broadest definition . . . ever included in any one act.” 482 Courts interpreting that definition have focused on the “economic realities” of the purported employment relationship. The “economic realities” inquiry, in turn, focuses on a number of factors related to control over the employee, including whether the alleged employer (1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) 471 Lindsley , 984 F.3d at 464. 472 Id. at 467. 473 Id. at 468. 474 Black v. Barrett Bus. Servs., Inc. , No. 1:18-cv-96-CWD, 2019 WL 2250263 (D. Idaho May 23, 2019). 475 Id. at *5. 476 Id. (quoting Winther v. City of Portland , 21 F.3d 1119, at *1 (9th Cir. 1994)). 477 Id. at *6. 478 42 U.S.C. § 2000e(b). 479 29 U.S.C. § 203(d). 480 Id. § 203(e)(1). 481 Id. § 203(g). 482 U.S. v. Rosenwasser , 323 U.S. 360, 363 n.3 (1945).