©2023 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 23 first held that: “The ‘equal pay’ prong of the prima facie case is not seriously in dispute here, as the parties agree that [plaintiff] earned more than two other directors in the Operations department . . . and earned less than one . . . .”172 But the court found the responsibilities of plaintiff and her comparator extended over different aspects of the business and therefore “had vastly different content with respect to skills and responsibilities.”173 This was not contested by plaintiff; instead, plaintiff argued that she had a more demanding job than her comparator.174 But the court held that this argument was outside the scope of what it could remedy under the EPA, noting: “The Supreme Court has declined to endorse the theory of ‘comparable worth’ in EPA cases, ‘under which plaintiffs might claim increased compensation on the basis of a comparison of the intrinsic worth or difficulty of their job with that of other jobs in the same organization or community.’”175 While a court could be called upon to determine whether two jobs are substantially equal, asking a court to determine how much salaries of two unequal jobs should differ “strains the competence of the litigation process.”176 Federal vs. State Requirements. One of the most significant open questions in equal pay litigation is how courts will interpret the “substantially similar” standard that was created by several new state laws, as compared to the “equal work” standard found in federal law. At least one court has held that there is no daylight between those standards, despite the slight difference in wording. In an unpublished opinion, Pak v. Github, Inc.,177 the California Court of Appeal for the First District held that the new California standard was actually meant to realign California law with the federal standard. In that case, a former associate general counsel alleged she was underpaid compared to her boss, the general counsel, and another female comparator who did not share plaintiff’s Asian heritage, a vice-president of law and policy. The court held that the 2016 revision to California’s equal pay law “did not materially alter the definition of ‘equal work’ or the analysis of that issue reflected in prior state and federal cases,” but instead, “the amended standard was very close to that which has long been applied by courts under the federal Equal Pay Act.”178 Rather than changing the standard applied under the federal EPA, the court held that the law “simply brought that section in line with case law under the federal EPA.”179 Applying that standard, the court held that plaintiff failed to establish that her comparators performed substantially similar work. Among other things, it found that the general counsel had been at the company for much longer, had performed admirably in his role, and always had considerably more responsibility than plaintiff.180 The court found similarly with respect to plaintiff’s other comparator, noting that the vice president of law and policy performed different work than an associate general counsel, that she had “broad responsibilities in management, policy work, and legal projects,” and, “had significantly more managerial responsibility.”181 The court concluded: “The undisputed facts demonstrate both [general counsel comparator] and [vice president comparator] had greater and substantially different responsibilities than [plaintiff]. When viewed as a composite of skill, effort, and responsibility, [plaintiff] did not perform substantially similar work to either comparator.”182 EPA vs. Title VII Claims. Finally, plaintiffs who pursue their claims under both the EPA and Title VII— and the employers who defend against those claims—must be cognizant of the different standards applied to determine proper comparators under those statutes. Many courts have held that the EPA and 172 Baker-Notter v. Freedom Forum, Inc., No. 18-cv-2499 (RC), 2022 WL 798382, at *7 (D.D.C. Mar. 15, 2022). 173 Id. at *8. 174 Id. at *9. 175 Id. (quoting Washington Cnty. v. Gunther, 452 U.S. 161, 166 (1981)). 176 Id. (quoting Sims-Fingers v. City of Indianapolis, 493 F.3d 768, 771 (7th Cir. 2007)). 177 Pak v. Github, Inc., No. A159585, 2021 WL 3660375 (Cal. App. Aug. 18, 2021). 178 Id. at *4 (citing 29 U.S.C. § 206(d)). 179 Id. at *5. 180 Id. at *5-6. 181 Id. at *7. 182 Id. at *8.
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