Developments In Equal Pay Litigation - 2022 Update

© 2022 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 7 ultimate merits of the case at trial. In each case, the plaintiff was required to identify a single male employee at the initial stage of litigation in order to establish a prima facie burden.” 43 So while a single comparator may be insufficient to prove discrimination as a matter of fact before a jury, the court reasoned that the Second Circuit held that it is sufficient to establish a prima facie case prior to trial. The court further reasoned that it would contravene precedent in the Second Circuit to allow an employer to attack a plaintiff’s prima facie case based on the existence of other comparators. To do so, the employer would have to establish as a matter of fact that those comparators were similarly situated to the plaintiff or their comparator. But that question is the province of the jury, and therefore cannot be decided before trial: “Put another way, if Defendant cannot establish the absence of a pay disparity as a matter of law, then Plaintiff's prima facie showing must stand, despite the existence of employees who may serve as counterexamples to wage discrimination at trial.” 44 Despite this rationale, many courts are unwilling to allow an equal pay lawsuit to proceed where the evidence tends to refute the existence of wage discrimination. Some courts have even devised novel tests to escape the “one comparator” rule in certain circumstances. For example, in Duke v. College of San Francisco , 45 the District Court for the Northern District of California dismissed the plaintiff’s first attempt at pleading an EPA claim because he had not alleged that he was paid less than the average of wages paid to females who performed substantially equal work. According to the court, “[t]he proper test for establishing a prima facie case in a professional setting such as that of a college is whether the plaintiff is receiving lower wages than the average of wages paid to all employees of the opposite sex performing substantially equal work and similarly situated with respect to any other factors, such as seniority, that affect the wage scale.” 46 But when the plaintiff amended his complaint to compare himself with the only other Associate Vice Chancellor of Student Affairs who held that position during the relevant time period, the case was allowed to proceed: “When there is only a single opposite-gender employee with similar work, it is appropriate to compare the plaintiff's pay against that of a single employee.” 47 Other courts hold to the “one comparator” rule even in these circumstances, expressly rejecting the use of a different test for a professional setting. 48 Litigants may sometimes turn to statistics to buttress their case, using them to establish that a wage disparity is due to discrimination, even for single plaintiff cases. But unless the meaning of such statistics is clear, courts may still fall back on a simple comparison of salaries among plaintiffs and their comparators. For example, in Atta v. Cisco Systems, Inc. , 49 a female marketing department employee alleged that she was paid less than male employees in the same pay grade who worked in the same department. She wanted the court to infer discrimination from the fact that her male workers’ compensation ratios, on average, exceeded the women’s ratios. The court was unwilling to draw that conclusion from the statistics she presented. Among other things, the court held that “statistics may be a piece of circumstantial proof bolstering an inference of discrimination, but to be useful, the statistics must clearly show actual differences in treatment, and their usefulness therefore ‘depends on all of the surrounding facts and circumstances.’” 50 The court then compared plaintiff’s salary with those of her male comparators and found that she had been paid more than two male comparators in her first year in their 43 Eisenhauer , 2021 WL 5112625, at *5. 44 Id . at *6. 45 Duke v. Coll. of S.F. , 445 F. Supp. 3d 216 (N.D. Cal. Apr. 10, 2020). 46 Id. at 229 (quoting Hein v. Or. Coll. of Educ. , 718 F.2d 910, 916 (9th Cir. 1983)). 47 Id. 48 See, e.g., Mullenix v. Univ. of Tex. at Austin , No. 1:19-cv-1203-LY, 2021 WL 5881690 (W.D. Tex. Dec. 13, 2021) (“[U]nder Fifth Circuit precedent, a plaintiff need only identify one comparator in a position requiring equal skill, effort, and responsibility under similar working conditions as the plaintiff.”) (citing Weaver v. Basic Energy Servs., L.P. , 578 F. App'x 449, 451 (5th Cir. 2014); Vasquez v. El Paso Cnty. Cmty. Coll. Dist. , 177 F. App'x 422, 425 (5th Cir. 2006); Gillis v. Turner Indus., Ltd. , 137 F.3d 1349, (5th Cir. 1998)). 49 Atta v. Cisco Sys., Inc. , No. 1:18-cv-1558-CC-JKL, 2020 WL 7384689 (N.D. Ga. Aug. 3, 2020). 50 Id . at *26 (quoting Int'l Bhd. of Teamsters v. U.S. , 431 U.S. 324, 340 (1977)).