©2023 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 15 under similar working conditions.106 The court rejected plaintiffs’ expert’s model, and denied class certification, holding that it “does not properly analyze the pay rates of putative class members and juxtapose those against employees who perform substantially similar work.”107 Similarly, in Kassman v. KPMG LLP,108 the court rejected an employees’ attempt to use statistics to prove classwide wage discrimination because the statistical analysis could not adequately account for the differences among individual employees’ job duties and working conditions. Plaintiffs’ expert performed a regression analysis and found statistically significant differences in compensation between men and women, controlling for job level, experience, education, job location, and performance ratings.109 But the employer’s expert concluded that no statistically significant disparity exists when employees are appropriately classified according to specialized job categories.110 The court concluded that plaintiffs had failed to establish that pay and promotion practices are uniform across the company, so there was no reason to rely on aggregated, nationwide statistics.111 New Theories of Wage Discrimination. Some plaintiffs have quite openly attempted to expand the boundaries of wage discrimination claims, arguing that they were unfairly paid even if they were unequivocally paid more than comparators of the opposite sex. For example, in Moore v. Penfed Title, LLC,112 a Vice President of a credit union alleged he was discriminated against on multiple grounds, including with respect to compensation. Proceeding under Title VII, the plaintiff alleged that he was paid “a relatively low salary” due to discrimination against him, that he was wrongfully denied a 5% year-end bonus, and that his supervisor refused to give him a performance evaluation that would have allowed him to receive a bonus or merit increase.113 However, plaintiff’s chosen comparators held positions with less responsibility and were each paid less than the plaintiff.114 His argument was that he was not paid enough above those comparators, due to discrimination. The court rejected that claim: “[Plaintiff] cannot make out the fourth prima facie element of a Title VII unequal compensation discrimination claim with respect to his overall salary. His argument boils down to an objection that he was not awarded enough of a premium above all other . . . employees for his unique role within the organization. In this respect, the Court will not second guess [employer’s] compensation decisions absent a prima facie showing of compensation discrimination.”115 106 Bridewell-Sledge, 2018 Cal. Super. LEXIS 3879, at *44. 107 Id. at *47. Plaintiffs’ expert had attempted to control for location and job category using the EEOC’s EEO-1 categories to establish that any two individuals within the same EEO-1 category were performing “substantially similar work.” Id. at *44-47. The employer’s expert opined that because there are only ten such categories, they would, by necessity, tend to group employees within the same category who are demonstrably not performing “substantially similar work” within the meaning of California law. The employer’s expert noted, among other things, that “over 80 percent of the records in [plaintiff’s expert’s] analytic file fall into a single EEO-1 occupational category, [plaintiff’s expert’s] model has effectively no statistical control to situate employees with respect to their skill, effort and responsibility.” Id. at *45. Without the use of any statistical methodology to assess statutory violations on a class basis, the court would have to “individually review a class member's status and assess whether those employees perform ‘equal work’ under ‘similar working conditions’ or ‘substantially similar work when viewed as a composite of skill, effort, and responsibility.’" Id. at *48. 108 Kassman v. KPMG LLP, 416 F. Supp. 3d 252 (S.D.N.Y. 2018). In that case, plaintiffs sought to bring a class and collective action on behalf of more than 10,000 female Associates, Senior Associates, Managers, Senior Managers/Directors, and Managing Directors within the company’s Tax and Advisory Functions from 2009 to the present. Id. at 259. 109 Id. at 263-64. 110 Id. at 265. Rather, the data “reflects a heavier concentration of men in higher compensated units and heavier concentration of women in lesser compensated units.” Id. 111 Id. at 282. Moreover, because the employer allowed individual managers discretion over pay decisions, the court held that “there is no (non-discretionary) uniform causal mechanism for determining pay and promotion operating across the Proposed Collective. This means that there are likely 1,100 defenses to justify why the 1,100 opt-ins were paid as they were. Adjudicating the claims of the proposed collective in a single action would give rise to obvious procedural difficulties and could not assure fair treatment of any party involved.” Id. at 288. 112 Moore v. Penfed Title, LLC, No. 1:20-cv-0867, 2021 WL 2004785 (E.D. Va. May 18, 2021). 113 Id. at *3. 114 Id. at *3-4. 115 Id. at *5.
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