18 | Developments in Equal Pay Litigation ©2023 Seyfarth Shaw LLP Differences in outcome often come down to the facts plaintiffs or employers can successfully marshal in their favor. To take just a few recent examples: one court decided that newsroom photographers performed equal work, despite variations in the type and amount of video editing required by their individual jobs because, among other things, their performance evaluations showed that they were required to produce similar types of video projects as their comparators.132 Another held that, even though plaintiff and her alleged comparator held the same job title, their work was not sufficiently similar because her comparator was handling about six or seven different clients and six or seven different service lines compared to plaintiff’s one, and managed more revenue and supervised more employees than plaintiff.133 Moreover, many courts have been willing to dismiss a plaintiffs’ allegations at the pleading stage, where the complaint makes conclusory or boilerplate allegations of similarity without describing job details in sufficient detail.134 Formal Job Classifications and Hierarchies. Most often, courts look to specific job duties to determine whether employees’ work is truly equal, and they will discount formal corporate hierarchies or pay grades if they do not reflect the true nature of the work performed by employees. For example, in Heatherly v. University of Alabama Board of Trustees,135 the Eleventh Circuit upheld a decision holding that a job evaluation system, on its own, could not establish a prima facie EPA violation. The Eleventh Circuit agreed with the district court in refusing to credit plaintiff’s claim that the employer valued all jobs within the same pay grade equally, noting that the salaries within plaintiff’s own pay grade ranged widely.136 After comparing plaintiff’s job duties versus those of her comparators side-by-side, the Eleventh Circuit 132 See Galligan v. Detroit Free Press, 436 F. Supp. 3d 980, 993 (E.D. Mich. 2020) (holding that newsroom photographers’ work was equal despite different amounts of time spent editing different levels of video projects: “given the substantial overlap in overall work performed by [plaintiff and comparator], the one modest difference concerning percentage of time that each of them spent editing photos does not compel a finding, as a matter of law, that [plaintiff and comparator] do not perform equal work,” but finding that their work was different than reporters in the same newsroom). See also Crain v. Judson Indep. Sch. Dist., No. SA-16-cv-832-XR, 2018 WL 5315219, at *11 (W.D. Tex. Oct. 26, 2018) (granting summary judgment to employer where “Plaintiff's job as an aide did not require him to possess professional teaching skills and that other aides and supervisors at Adventure Club were not professional teachers. Adventure Club employees were subject to a different employee manual than ACE teachers. As noted by [employer], Plaintiff's own summary-judgment evidence demonstrates that Adult & Community Education and Adventure club were separate departments and that Adult & Community Education employees such as [comparator] were paid different rates than the Adventure Club employees”); Stephens v. Bd. of Trs. of the Univ. of S. Fla., No. 8:17-cv-53-T-23AAS, 2018 WL 4823125, at *3 (M.D. Fla. Oct. 4, 2018) (holding that clinical physician had failed to establish “equal work” because plaintiff’s own argument “about the termination of her administrative stipends—compensation for non-clinical work—renders invalid a comparison between [plaintiff] and her male colleagues. [Plaintiff] spent half her time on non-clinical work; her male colleagues spent all their time on clinical work.”). 133 Whitlock v. Williams Lea, Inc., No. 16-cv-6347, 2019 WL 1382267, at *5 (N.D. Ill. Mar. 27, 2019) (finding that although Senior Account Managers shared common general duties of supervising direct and indirect reports for one or multiple clients across various service lines and ensuring delivery of the contract services, plaintiff’s comparator’s work was not equal because he supervised many more clients and employees: “[p]erhaps the differences that [employer] identified are somehow insignificant—like maybe it did not take much effort to supervise employees, so the difference in the number of supervisees was insignificant to the job—but [plaintiff] has not provided any such evidence”). 134 See, e.g., Kairam v. West Side GI, LLC, 793 F. App’x 23, 26 (2d Cir. 2019) (upholding district court’s dismissal of EPA claim brought by physician plaintiff because “[t]he [complaint] alleges details about [plaintiff’s] position, including, among other things, that she analyzed patterns to see whether particular doctors were experiencing problems with particular insurers,” and “analyzed denials to improve billing procedures,” but with respect to her comparator, she merely alleged that he was paid to run a practice that “involved administrative duties at [the same employer]”). 135 Heatherly v. Univ. of Ala. Bd. of Trs., 778 F. App’x 690 (11th Cir. 2019). In that case, the Director of Human Resources for a university brought a federal EPA claim alleging that she was paid less than three male employees in director-level positions. Plaintiff argued that the university used a job evaluation system, the Mercer System, to establish pay grades for different jobs based on such factors as knowledge and experience, job complexity and creativity, and physical demands and working conditions, in accordance with standards determined by the university. Heatherly v. Univ. of Ala. Bd. of Trs., No. 7:16-cv-00275-RDP, 2018 WL 3439341, at *13 (N.D. Ala. July 17, 2018). Because the use of that system established the same pay grade for her position versus those of her male comparators, she argued that this established the “equal work” prong of her prima facie case. Id. The court disagreed, holding that binding precedent forced it to look at actual job content to determine whether the skill, effort, and responsibility required is substantially equal; it could not merely rely on a job evaluation system. Id. Moreover, because the job evaluation system allowed for wide salary ranges even within the same pay grade, this showed that “an employee’s categorization into a pay grade does not pinpoint that employee’s exact salary and that multiple employees within the same pay grade may have and earn varying salaries.” Id. at *14. 136 Heatherly, 778 F. App’x at 692.
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