©2023 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 17 faculty while at the same time maintaining a fair compensation system for all professors.125 The Ninth Circuit later reversed that aspect of the district court’s decision, holding that a reasonable jury could hold that plaintiff and her comparators share the same “overall job,” noting that they are all full professors in the Psychology Department and “all conduct research, teach classes, advise students, and ‘serve actively on departmental, college, and university committees and in other roles in service to the institution.’”126 Attorneys and other legal professionals have also found it difficult to establish this element of a prima facie case. For example, in Tolton v. Jones Day,127 the District Court for the District of Columbia held that associate attorneys of a large law firm did not necessarily perform equal work as other associates in the same class year if they did not work in the same geographic area or the same practice group. Similarly, in Smith v. Office of the Attorney General, State of Alabama,128 the District Court for the Middle District of Alabama held that the work of criminal investigators who focused on different types of crimes did not perform equal work. The court held that the plaintiff failed to establish a prima facie case of wage discrimination because her work investigating crimes of violence against women and children were “a different animal entirely” than the public corruption and similar crimes that were investigated by her chosen comparators in the Special Prosecutions Division.129 And in Dass v. City University of New York,130 the district court for the Southern District of New York dismissed an EPA complaint because its allegations of other forms of discrimination undercut plaintiff’s claim that she was “similarly situated” to other employees who did not suffer such discrimination. The plaintiff’s complaint was self-defeating because it acknowledged that the plaintiff, an Athletic Director, performed tasks and responsibilities outside the scope of an Athletic Director’s responsibilities and had a smaller staff than other Athletic Directors.131 The variety of factual circumstances or job duties that courts have relied upon to find that work was not “equal” for purposes of an EPA violation are as wide and vast as the American workplace itself. 125 Id. In particular, the court held that senior professors and professors who take on introductory courses and devote extra time to advising and other roles that make up the bread and butter of a university education, may be paid according to a pay scale that has not kept up with the market demand that influences how much a university has to pay to attract top talent. Id. The district court then analyzed plaintiff’s comparators in detail, holding with respect to each one that the differences in their job duties and other related activities, as well as their frequency and success with respect to the submission of grant applications, justified the salary discrepancies among those professors. Id. at 1291-94. 126 Freyd v. Univ. of Or., 990 F.3d 1211, 1221 (9th Cir. 2021). The Ninth Circuit also noted that the university itself regularly compares faculty members when making salary decisions. Responding to an argument in a dissenting opinion, the court held that “the granularity with which the dissent picks through the facts would gut the Equal Pay Act for all but the most perfunctory of tasks. The Equal Pay Act, however, is ‘broadly remedial,’ and should be so ‘construed and applied’ as to be ‘workable across the broad range of industries covered by the Act.’” Id. at 1222. 127 Tolton v. Jones Day, No. 19-cv-945 (RDM), 2020 WL 2542129 (D.D.C. May 19, 2020). In that case, a group of female attorneys alleged a variety of theories of sex discrimination against their former law firm employer. The court held that some of the plaintiffs had alleged sufficient facts to state an EPA claim, while others did not. In particular, the court did not credit plaintiffs’ allegations that they were not paid “Cravath market pay” because they had failed to allege that all of the employer’s offices around the country operated in the same “market,” or that the market they were referring to would have applied to offices outside of New York. Id. at *30. But the court did allow the claims of some plaintiffs to proceed where they plausibly alleged that they earned less than male comparators who were at their same level and performed similar work. Id. 128 Smith v. Office of the Att’y Gen., State of Ala., No. 2:17-cv-00297-RAH, 2020 WL 4015622 (M.D. Ala. July 16, 2020). In that case, an investigator with the Office of the Attorney General of Alabama alleged she was paid less than male comparators who worked in a different division of the same office. 129 Id. at *7. The court held that a distinction should be made between general training and education required for an investigator position generally versus the specific training and expertise required of certain investigators. “A lawyer or detective trained for or mostly familiar with one—and who has excelled in that particular area of law—will not necessarily possess the expertise required to thrive in the other, at least without some extended and specialized training.” Id. The different levels of skill required meant that those jobs were not “virtually identical” as the EPA requires. Id. at *8. 130 Dass v. City Univ. of N.Y., No. 18-cv-11325 (VSB), 2020 WL 1922689 (S.D.N.Y. Apr. 21, 2020). In that case, a female Athletic Director of a community college alleged she was paid substantially less than other Athletic Directors in the same university system. Id. at *1. The Court held that her allegations were insufficient, noting that “Plaintiff's allegations reveal that all of the other Athletic Directors referenced in the complaint worked at different colleges in the CUNY system, which has twenty-five different educational institutions,” and that she “does not allege any facts suggesting that her position, experience, skills, and responsibilities were substantially equal to those of the male Athletic Directors at these different CUNY schools, or that she performed equal work.” Id. at *6. 131 The court concluded that “Plaintiff's claim cannot proceed on these bare allegations of general job descriptions and her belief that other Athletic Directors were ‘similarly situated,’ especially given the specific factual allegations indicating that Plaintiff's position, and job responsibilities, were unique.” Id. at *7.
RkJQdWJsaXNoZXIy OTkwMTQ4