24 | Developments in Equal Pay Litigation ©2023 Seyfarth Shaw LLP Title VII pay discrimination claims should often be decided the same way.183 However, the Second Circuit recently clarified an important substantive difference between these statutes. In Lenzi v. Systemax, Inc.,184 the plaintiff had alleged violations of the EPA and Title VII related to the setting of her compensation. The district court dismissed her claims, holding that her Title VII claims, like claims brought under the EPA, required her to show “positions held by her purported male comparators [were] substantially equal to her position.”185 Plaintiff could not make this showing because she was the only employee who held her job title and duties. The Second Circuit clarified that “a Title VII plaintiff alleging a discriminatory compensation practice need not establish that she performed equal work for unequal pay,” as is required by the EPA.186 “[A]ll Title VII requires a plaintiff to prove is that her employer ‘discriminate[d] against [her] with respect to [her] compensation . . . because of [her] . . . sex.”187 Discriminatory pay claims can be brought successfully under Title VII even if the plaintiff cannot show a purported comparator of the opposite sex earned more. But these differences in law are not always enough to save a plaintiff’s prima facie case; the standard under Title VII is not toothless. For example, in Calicchio v. Oasis Outsourcing Group Holdings, L.P.,188 a Chief Human Resources Officer alleged she was paid less than males who worked in other roles that reported directly to the CEO: the Executive Vice President and Chief Financial Officer, the Chief Operating Officer, the Chief Sales Officer, and the Chief Information Officer. The court held that the plaintiff could not state a prima facie case of wage discrimination under the EPA based on those comparators: “While Plaintiff and each of the comparators are high-level executives, the record shows they undertook distinct primary tasks and maintained differing portfolios of responsibility.”189 The court recognized that “Plaintiff's failure to establish a prima facie case under the EPA reflects a persistent problem faced by members of protected classes serving in high-level executive positions.”190 The court then went on to analyze plaintiff’s claim of gender discrimination under Title VII, noting that “[i]t is true that the burden of showing the similarity of work performed by a female plaintiff and a male comparator is ‘more relaxed’ under Title VII than under the EPA.”191 However, the court held that under Title VII, plaintiff still had to show that she and her proffered comparators were similarly situated in all material respects. In addition to the different duties that were dispositive to her EPA claim, the court held that she was not “similarly situated” because she did not share the same employment history; her comparators had worked for the employer decades longer than plaintiff, “a difference in employment history that alone prevents them from being ‘similarly situated’ to Plaintiff.”192 On appeal, the Eleventh Circuit affirmed the decision of the district court, noting that “Title VII and the EPA have different burdens of proof,” and that, “[u]nder Title VII, ‘there is a relaxed standard of similarity between male and female-occupied jobs, but a plaintiff has the burden of proving an intent to discriminate on the basis of sex.’”193 The court also compared the burden imposed on plaintiffs seeking to overcome an employer’s proffered explanation for a wage disparity. Under the EPA, a plaintiff “can show pretext by 183 See, e.g., Gallaway v. Rand Corp., No. 2:18-cv-01379-RJC, 2020 WL 1984312, at *14 (W.D. Pa. Apr. 27, 2020) (holding that the analysis regarding the third and fourth elements of a Title VII pay discrimination claim were “aided in large part by the reasoning as to the Equal Pay Act claim, supra. As to the third prong, there is a genuine dispute of material fact that Plaintiff suffered an adverse action when she was paid less than her male comparators who performed similar duties. . . . As to the fourth prong, there is sufficient record evidence to allow a reasonable factfinder to conclude that Plaintiff's performance of the same duties under the same level of supervision gives rise to an inference of unlawful discrimination”). 184 Lenzi v. Systemax, Inc., 944 F.3d 97 (2d Cir. 2019). 185 Id. at 108 (internal citations omitted). 186 Id. at 110. 187 Id. (quoting 42 U.S.C. § 2000e-2(a)(1)). The Second Circuit acknowledged that its earlier opinions may have confused the district court; it previously held that “[a] claim of unequal pay for equal work under Title VII . . . is generally analyzed under the same standards used in an EPA claim.” Id. at 109 (quoting Tomka v. Seiler Corp., 66 F.3d 1295, 1312 (2d Cir. 1995)). 188 Calicchio v. Oasis Outsourcing Group Holdings, L.P., No. 19-cv-81292-RAR, 2021 WL 3123767 (S.D. Fla. July 22, 2021). 189 Id. at *8. Among other things, the court held that the duties and skills of a Chief Human Resources Officer differed materially and were narrower than her comparators’ positions. 190 Id. at *11. 191 Id. at *16 (quoting Rollins v. Ala. Comm. Coll. Sys., 814 F. Supp. 2d 1250, 1267 (M.D. Ala. 2011)). 192 Id. at *17 (quoting Lewis v. City of Union City, Ga., 918 F.3d 1213, 1228 (11th Cir. 2019)). 193 Calicchio v. Oasis Outsourcing Group Holdings, L.P., No. 21-12854, 2022 WL 2761720, at *3 (11th Cir. July 15, 2022) (quoting Miranda v. B&B Cash Grocery Store, Inc., 975 F.2d 1518, 1526 (11th Cir. 1992)).
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