Developments In Equal Pay Litigation - 2022 Update

62 | Developments in Equal Pay Litigation © 2022 Seyfarth Shaw LLP fixed pay increases only exacerbated the situation over time, so that by the time they became full professors, the male professor made approximately $28,000 more than the female professor. 532 The University argued that the professors did not perform substantially equal work and that the salary discrepancy could be explained by a factor other than sex. The court first held that a reasonable jury reviewing the duties of the two professors could conclude that their positions were substantially equal. 533 Although the two professors taught different political science specialties, the court noted that they both have doctorate degrees, generally teach the same number of courses at the introductory and advanced levels, and are subject to the same University requirements regarding teaching and research. The University argued that the two professors were not comparable because of their different areas of specialization and because they published in different journals, and because the male professor had published in more prestigious journals. The court found this evidence unpersuasive because “the professors’ specializations within the field of political science do not appear to be dispositive as to the question of substantial job similarity,” but “[r]ather, subspecialties are considered when evaluating whether a professor conducted research and was subsequently published in high- ranking journals relevant to their respective specializations.” 534 The court was ultimately convinced that “the quality of [comparator’s] publications and number of cite counts are determinative of this inquiry because the Plaintiff's prima facie case requires a comparison of jobs, not the skills and qualifications of the individuals who hold the jobs.” 535 The University also argued that the salary disparity between the two professors was due to a factor other than sex; namely, they were “market-based,” that annual raises were determined by individual performance, and that multiple salary analyses confirmed that there was no relationship between gender and salary at the University. 536 The court could not credit the “market-based” theory due to the absence of credible evidence as to what the market was at the time the two professors were hired. The court was also not convinced that the pay disparity could be explained by disproportionate performance. Although the University claimed that the charging party published in less prestigious journals than the male professor, the Dean had admitted that he had not reviewed her salary increases or the reasons for the amounts that had been awarded in each year, thus undercutting the University’s proposed explanation. 537 Moreover, the court did find evidence of gender disparities at the University, including evidence that the University placed a higher service requirement on female professors and had proactively increased male professors’ salaries to close the gap with female professors, but had not done so for the charging party, despite the fact that her Department Chair had conceded that she was “grossly underpaid.” 538 Turning to the Title VII claim, the court held that “[b]ecause the EEOC has established its disparate pay claim under the more rigorous analysis of the Equal Pay Act, the court finds that it has met its initial burden of showing its prima facie case under Title VII.” 539 The court also found that the University had met its burden to articulate legitimate bases for the alleged pay disparity, but, for the same reasons that doomed the University’s defense to the EPA claim, also held that the EEOC had “advanced sufficient evidence to cast doubt on the University's purportedly legitimate basis for the pay differential,” thus meeting its burden to show that those reasons were pretextual. 540 Accordingly, the University’s motion for summary judgment was denied. Written policies regarding salary scales and job categories often factor into pay equity cases, as employers often rely on those policies to prove that salaries were set according to such policies and are therefore not discriminatory. For example, in Enoch Pratt Free Library , the employer pointed out that it 532 Id . 533 Id . at *8. 534 Id . 535 Id . 536 Id . at *9. 537 Id . at *10. 538 Id . at *11. 539 Id . at *12. 540 Id .