©2023 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 33 right to assert its affirmative defenses, it does not have a due process right to litigate an affirmative defense as to each individual class member. Rather, the employer would have to prove its affirmative defenses using a statistical model of proof that relies on “representative testimony, sampling, or other procedures employing a statistical methodology.”253 The Ellis decision is significant for many reasons, but from the perspective of equal pay litigation, it is perhaps most noteworthy in that it was certified under one of the newly enacted state law analogues of the federal EPA. And the court expressly based its decision on features of that new law, including the arguably different test for determining proper comparators, i.e., the “substantially similar” standard as opposed to the “equal work” standard that appears in the federal EPA. Of course, class certification has long been a part of wage discrimination cases brought under Title VII and its state law analogues. For example, in Abbananto v. County of Nassau,254 the District Court for the Eastern District of New York certified a class pursuing sex-based wage discrimination claims, even though the class was comprised of both women and men. In that case, male and female Police Communications Operators (“PCOs”) and Police Communications Operators Supervisors (“PCOSs”) alleged that their predominantly female workforce was paid less than the predominantly male Fire Communication Technicians (“FCTs”) and Fire Communications Technicians Supervisors (“FCTSs”), despite performing nearly identical work.255 The court found that common questions bound the class together, even though the class was made up of both male and female PCOs and PCOSs.256 The court held that Title VII applies not just to those discriminated against directly, but also to those who suffer the effects of discrimination directed at others: “Under Plaintiffs’ theory of this case, Defendant's challenged system applies to—and therefore aggrieves—all, rather than just female, PCOs and PCOSs, creating common questions sufficient to satisfy commonality.”257 Statistics often play a critical role in class or collective certification decisions. For example, in Ahad v. Board of Trustees of Southern Illinois University,258 the court initially conditionally certified a collective action of female faculty physicians, but later denied plaintiff’s request for class certification of the same claims under the Illinois Equal Pay Act, Title VII, and the Illinois Civil Rights Act.259 Plaintiff’s expert had shown that female physicians were paid less at a statistically significant level than similarly situated male physicians.260 But the court held that this statistical disparity, by itself, was not enough to warrant class treatment; plaintiff must establish the “glue” that can produce a common answer to the questions of whether and why compensation for female physicians is lower than male physicians.261 The court noted several other states, an employer can only assert that a wage disparity is due to a factor other than sex if that factor is, among other things, not itself derived from a sex-based differential in compensation, is job related, and is consistent with business necessity. See Cal. Lab. Code § 1197.5(a)(1)-(3). 253 Ellis, 2021 WL 4169813, at *10. This is a hotly contested issue of class action procedure driven by competing interpretations of the Supreme Court’s seminal decisions in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) and Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036 (2016). 254 Abbananto v. Cnty. of Nassau, No. 19-cv-1102(GRB)(JMW), 2022 WL 326982 (E.D.N.Y. Feb. 3, 2022). 255 Id. at *1. 256 Id. at *6. 257 Id. But see Miller v. City of N.Y., No. 15-cv-7563, 2018 WL 2059841, at *4-5 (S.D.N.Y. May 1, 2018) (dismissing the claims of a class of over 2,000 female school crossing guards who alleged they were paid less than traffic enforcement agents due to the “stark differences in training, job requirements, and job responsibilities” between the two positions,” noting that (1) traffic enforcement agents undergo ten times more training than school crossing guards; (2) they are full-time employees who can be required to work nights, weekends, and overtime, whereas crossing guards are part-time employees who work no more than five hours per day; (3) they have greater responsibilities, including issuing summonses and testifying in court; and (4) they work at different, often busier intersections and sometimes at night); Bloise v. City of N.Y., 768 F. App’x 103, 138 (2d Cir. 2019) (upholding Miller, concluding: “the [school crossing guard] and [traffic enforcement agent] jobs are not substantially equivalent, as [traffic enforcement agents] must fulfill more requirements, undergo more training, perform all responsibilities, and labor under different and more hazardous working conditions”). 258 Ahad v. Bd. of Trs. of S. Ill. Univ., No. 3:15-cv-03308, 2017 WL 4330377 (C.D. Ill. Sept. 29, 2017). The court was satisfied that plaintiffs had met their minimal burden to obtain conditional certification at step one of the process because all faculty physicians performed the same job duties involving patient, teaching, and administrative functions. Id. at *4. 259 Ahad v. Bd. of Trs. of S. Ill. Univ., No. 15-cv-3308, 2018 WL 4350180 (C.D. Ill. Sept. 12, 2018). 260 Id. at *9. 261 Id. at *10.
RkJQdWJsaXNoZXIy OTkwMTQ4