©2023 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 13 Employers should expect many more decisions like this, which attempt to define how that decision will reshape workplace policies and practices. Wage Discrimination or Promotion Discrimination. Because it is often the case that higher pay accompanies promotions, pay discrimination claims are often combined and conflated with promotion discrimination claims. But those are different theories of discrimination, governed by different statutory schemes. Although both types of claims can be brought under Title VII, only pay discrimination claims can be brought under the EPA. A failure to recognize and respect this difference can be fatal to a plaintiff’s case. For example, in Williams v. State of Illinois,85 a Special Assistant to the General Counsel for the former Governor of Illinois alleged she was discriminated against under, among other laws, the EPA, based on the fact that comparable male employees were promoted ahead of her and were therefore paid more.86 The court granted the employer’s motion to dismiss the EPA claim, noting that the complaint alleged that both male and female employees had been promoted over her.87 The court held that those facts contradicted what was needed to establish a viable theory of liability, and that plaintiff had thereby pleaded herself out of court. “Because the Equal Pay Act requires an allegation that different wages are paid to employees of another sex for equal work, the allegation that other women were promoted—and the absence of an allegation that men were paid more for equal work—defeats the Equal Pay Act claim.”88 The dismissal was without prejudiced to plaintiff’s right to amend her complaint. Similarly, in Brown-Edwards v. Marshall,89 a Special Agent in a department of the state Attorney General (an investigatory role) alleged she was discriminated against due to her race and gender when she was repeatedly passed over for promotion to Senior Special Agent.90 She pointed to a comparator who had been promoted to the Senior Special Agent position and earned more in salary as a result.91 The court granted summary judgment to the employer on her EPA claim for two reasons. First, the court held that “she has not shown—and cannot show—that she and [comparator] performed substantially similar work as their positions had different job titles, different job responsibilities, and were in different divisions of the OAG.”92 Second, and more fundamentally, the court held that the plaintiff could not base an EPA pay discrimination claim on what was, in essence, a Title VII promotion discrimination claim. “An employer's failure to promote and discriminatory pay practices are discrete actions that must be challenged and asserted separately.”93 Because the promotion decision happened outside the statute of limitations for her Title VII claim, she could not bring that claim. Nor could she rely on the continuing violation doctrine to revive it, because that doctrine does not extend the statute of limitations for discrete discriminatory acts, such as a failure to promote. “Simply put, [plaintiff] cannot disguise an untimely failure-to-promote claim as a pay discrimination claim merely because she was paid less than she would have made had she been promoted.”94 Statistics and Other Methods of Proof. 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.,95 a female marketing department employee alleged 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 85 Williams v. State of Ill., No. 1:21-cv-02495, 2022 WL 52745 (N.D. Ill. Mar. 30, 2022). 86 Id. at *1. 87 Id. at *4. 88 Id. 89 Brown-Edwards v. Marshall, No. 2:20-cv-876-RAH, 2023 WL 121450 (M.D. Ala. Jan. 6, 2023). 90 Id. at *2. 91 Id. at *4. 92 Id. at *10. 93 Id. at *11. 94 Id. 95 Atta v. Cisco Sys., Inc., No. 1:18-cv-1558-CC-JKL, 2020 WL 7384689 (N.D. Ga. Aug. 3, 2020).
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