22 | Developments in Equal Pay Litigation ©2023 Seyfarth Shaw LLP work as plaintiff because he possessed a different level of education, experience, and skills. The court was mindful that “it is ‘the jobs and not the employees’ that must be compared.”163 But the court held that plaintiff’s male comparator was able to use his enhanced skills to perform functions plaintiff could not do: “As part of his job duties as a Technical Researcher, [comparator] used his computer programming skills and, more specifically, his familiarity with the Matlab program, to perform coding simulations to assist in determining whether proposed solutions for various scientific problems could work outside the laboratory.”164 Methods of Proof. Sometimes an equal pay case will turn on the methods of proof used to establish equality of work. Some plaintiffs have attempted to make out a prima facie case by trying to establish a general pattern of discrimination through the use of statistics. But these attempts tend to miss the point of the “equal work” analysis, which is a determination of qualitative rather than quantitative difference. In Chavez v. Lewis & Lewis, Inc.,165 for example, a scale operator alleged various forms of discrimination, including sexual harassment, failure to promote, retaliation, and wage discrimination claims. The crux of her wage discrimination claim was that she was paid less because her employer did not allow her to advance in her position by, for example, training her or allowing her to drive trucks, which her male supervisors allegedly told her was a job “for the guys.”166 She also alleges that her male supervisors obstructed her ability to advance to different grades or to receive raises. In support, she introduced statistical evidence that compared the average wages and raises given to female employees versus those given to male employees to show a disparity in treatment.167 The court held that plaintiff’s claims were essentially that she was denied certain opportunities for advancement because of her gender, which are not violations of the EPA: “While Plaintiff attempts to differentiate between ‘promotion’ and ‘opportunity for advancement’ this is merely semantics. Title VII, not the EPA, affords the remedy for allegations that Defendants discriminated against her in preventing opportunity for advancement by denying her the requisite training.”168 The court also rejected plaintiff’s statistical averages, holding that it fails to compare employees that are similarly situated with respect to the work they perform. The court held that “[e]mployees are not similarly situated simply by ‘Division’ classification. . . .,” rather, the law requires, “consideration of whether the employees were performing ‘substantially equal’ work considering the skills, duties, supervision, effort and responsibilities of the jobs, as well as whether the conditions where the work was performed were ‘basically the same.’”169 Accordingly, the court held that the averages were simply not probative evidence to satisfy an EPA claim. Plaintiffs also often turn to “pay bands” or other hierarchical levels within an organization to try to establish that employees within the same band or level perform equal work. Some plaintiffs have had success using such proxies, especially to survive motions to dismiss at the beginning of a lawsuit. For example, in Baker-Notter v. Freedom Forum, Inc.,170 the court held that a company’s own internal salary review was sufficient to demonstrate comparability among jobs sufficient to survive a motion to dismiss.171 When the case reached the summary judgment stage, the analysis was much more searching. The court 163 Id. at *5 (quoting EEOC v. City Council of Cleveland, No. 88-3726, 1989 WL 54252, at *5, (6th Cir. May 24, 1989)) (emphasis in original). 164 Id. Moreover, plaintiff had provided no evidence to dispute the employer’s claim that the Technical Researcher position was changed prior to the comparator’s hire such that it required the programming skills that plaintiff did not possess. Id. at *6. 165 Chavez v. Lewis & Lewis, Inc., No. 21-cv-0095-F, 2022 WL 3645204 (D. Wyo. July 25, 2022). 166 Id. at *12. 167 Id. 168 Id. at *14. 169 Id. 170 Baker-Notter v. Freedom Forum, Inc., No. 18-cv-2499 (RC), 2019 WL 4601726 (D.D.C. Sept. 23, 2019). In that case, a Senior Director of Operations for a political nonprofit organization in Washington DC alleged various claims against her employer, including under the EPA. The nonprofit moved to dismiss, arguing that plaintiff had utterly failed to plead facts sufficient to show that the skills, effort, and responsibilities required of her position and her alleged male comparators were substantially equal. Id. at *9. The district court held that plaintiff’s obligation at the motion to dismiss stage was low; she was not required to “show” anything, but only to allege with some plausibility facts sufficient to state a claim for relief. Id. 171 Id. at *9. The complaint pointed to the nonprofit’s own salary survey, which was performed for the alleged purpose of uncovering salary discrepancies. The court held that this was sufficient to suggest that the jobs surveyed were at least comparable: “courts should not require so much detail about similarity at the front end of a lawsuit as to make equal pay laws largely inapplicable to this class of employees.” Id.
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