Developments In Equal Pay Litigation - 2022 Update

© 2022 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 59 DEVELOPMENTS IN EEOC ENFORCEMENT OF EQUAL PAY ACT CLAIMS For the past decade, the EEOC has set forth its top litigation priorities in its Strategic Enforcement Plan. For just as long, that plan has stated that the EEOC will continue to focus on compensation systems and practices that discriminate based on sex under the Equal Pay Act (“EPA”) and Title VII. 513 Most of the EEOC’s litigation involving equal pay issues has revolved around sex-based discrimination. However, the EEOC stressed that it will also focus on compensation systems and practices that discriminate on any protected basis, such as race, ethnicity, age, or individuals with disabilities. 514 The EPA has been perceived as the EEOC’s primary statutory weapon for combating sex-based pay discrimination. As noted above, the EPA overlaps with Title VII, which prohibits a broader range of discrimination on the basis of sex, including wage discrimination, and also prohibits wage discrimination against other protected groups. 515 The interplay between those two statutes has been the source of some interesting decisions over the past few years, including in the context of EEOC litigation. For example, in EEOC v. First Metropolitan Financial Service, Inc. , 516 the U.S. District Court for the Northern District of Mississippi had an opportunity to apply both statutes in a way that elucidated their different burdens of proof and burden-shifting schemes. In that case, the EEOC brought a class action complaint under the EPA and Title VII, alleging that a financial lending company paid female Branch Managers less than male Branch Managers. Although brought as a class action, the EEOC later informed the court that the class of aggrieved parties who had originally joined the suit had been reduced to only two females. 517 The employer argued that the two female Branch Managers did not have substantially similar responsibilities as their male Branch Manager comparators because they had been hired to manage a new branch, which had relatively few outstanding loans and therefore less responsibility compared to more established branches. 518 The court held that this argument was premised on a misapplication of the law. The court noted that “equal does not mean identical,” and that “[i]n determining whether job differences are so substantial as to make jobs unequal, it is pertinent to inquire whether and to what extent significance has been given to such differences in setting the wage levels for such jobs.” 519 Although the male managers’ work in more established branches may have impacted their day-to-day responsibilities, the record did not show that those circumstances had any effect on the employer’s decisions regarding their pay: “the supposed high demands imposed on [comparator] did not, according to [employer’s COO’s] deposition, significantly impact [employer’s] decision to pay [comparator] a higher base salary.” 520 The court then denied the employer’s attempt to meet one of the statutory exceptions found in the EPA, finding that the differences in training and experience could not justify the wage disparity, nor could the managers’ different salary demands and expectations. Turning to the EEOC’s Title VII claim, the court first noted that the two statutes apply different standards for establishing a prima facie case, but nevertheless concluded that “[h]aving found that the Plaintiff successfully established a prima facie case under the Equal Pay Act, the Court also finds that the 513 See U.S. Equal Employment Opportunity Commission Strategic Enforcement Plan FY 2017 - 2021, https://www.eeoc.gov/eeoc/plan/sep-2017.cfm. 514 Id. 515 Title VII makes it unlawful for an employer to “fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment,” or “to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee,” because of such individual's sex. See 42 U.S.C. § 2000e-2(a)(1)-(2). 516 EEOC v. First Metro. Fin. Serv., Inc. , 449 F. Supp. 3d 638 (N.D. Miss. 2020). 517 Id. at 642. 518 Id. at 644. 519 Id. (quoting 29 CFR § 1620.14(a)). 520 Id. at 644.