34 | Developments in Equal Pay Litigation ©2023 Seyfarth Shaw LLP that plaintiff had “not presented any argument that objective factors considered by the Department Chairs or the Dean in determining compensation resulted in the pay disparity.”262 Plaintiff’s statistical evidence alone, “does not and cannot show whether a common cause existed regardless of the statistically significant showing of pay disparities based on gender.”263 Later in the case, the court decertified the collective action as well, holding that plaintiff had failed to identify a common policy that caused the alleged discrimination.264 A recent case, United Probation Officers Association v. City of New York,265 demonstrates the challenges putative class action plaintiffs face when attempting to bring such claims on a class basis, and the use they may attempt to make of statistics and other expert evidence to overcome those challenges. In that case, a union that represents hundreds of current and former probation officers, and five female probation officers, sought to represent a class of probation employees, alleging that female probation officers of color were discriminated against in terms of pay and promotions in violation of title VII.266 The employer’s collective bargaining agreement with the union set minimum and maximum salaries for probation officers at different levels, established a schedule governing pay increases, and set pay rates for new hires.267 Plaintiffs alleged that the employer had kept probation officers pay at the lowest end of the salary range and had reduced their opportunities for paid overtime.268 They also alleged, among other things, that male probation officers were paid more than female probation officers at each tier of that position. Plaintiffs supported that allegation with the findings of an expert, who purportedly found that white male probation officers earned more than their counterparts, but admitted that those results did not take into account the officers’ titles.269 The gravamen of plaintiffs’ complaint was that white males with the same tenure as probation officers, and the same educational levels, were promoted to higher and better-paid positions as supervising probation officers at a higher rate than women of color.270 The employer sought dismissal of the complaint. The court first held that Plaintiffs could not rely on the continuing violation doctrine to extend the statute of limitations applicable to their promotion claims: “an ‘allegation of an ongoing discriminatory policy does not extend the statute of limitations where the individual effects of the policy that give rise to the claims are merely discrete acts.’”271 Looking to the merits, the court held that plaintiffs had failed to allege a discriminatory promotion claim because their statistics were based on a comparison of the wrong 262 Id. 263 Id. at *11. 264 Ahad v. Bd. of Trs. of S. Ill. Univ., No. 15-cv-3308, 2019 WL 1433753 (C.D. Ill. Mar. 29, 2019). The plaintiff was allowed to proceed to trial on her individual claim; the court later held, among other things, that “triable issues of fact exist regarding whether [plaintiff’s] and her male comparators' jobs had a ‘common core’ of tasks,” and that the employer had not carried its burden to establish that its merit-based system was a sex-neutral reason for the disparity in pay. Ahad v. Bd. of Trs. of S. Ill. Univ., No. 15-cv3308, 2021 WL 6118239, at *4, 6 (C.D. Ill. Dec. 23, 2021). See also Knox v. John Varvatos Enters., Inc., 282 F. Supp. 3d 644 (S.D.N.Y. 2017). In Knox, the District Court for the Southern District of New York conditionally certified a collective action of female sales associates. The defendant, a retailer with 22 stores throughout the United States, was alleged to have discriminated against female sales associates by providing male sales associates—and only male sales associates—a $12,000 annual allowance to purchase the Company’s branded clothing to wear to work. Id. at 651. The district court held that the plaintiffs had “easily made” their modest factual showing establishing that they and the putative collective action of women sales associates are similarly situated for purposes of conditional certification. Id. at 654. Critical to the court’s analysis was the fact that plaintiffs were able to point to a written dress policy that was applied across all 22 retail locations, which stated that all male employees received a clothing allowance. Id. at 654-55. A trial was held on plaintiffs’ claims in early 2020. On January 12, 2021, the Court affirmed the verdict of the jury in favor of plaintiffs and refused to grant defendant judgment as a matter of law or a new trial on critical issues of liability, but did allow for a new trial on issues of compensatory and punitive damages. Knox v. John Varvatos Enters., Inc., No. 17-cv-772 (GWG), 2021 WL 95914 (S.D.N.Y. Jan. 12, 2021). 265 United Probation Officers Ass’n v. City of N.Y., No. 21-cv-0218 (RA), 2022 WL 875864 (S.D.N.Y. Mar. 24, 2022). 266 Id. at *1. 267 Id. 268 Id. at *2. 269 Id. at *3. 270 Id. 271 Id at *5 (quoting Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 157 (2d Cir. 2012)). The court held that doctrine was inapplicable to class-wide pattern-or-practice claims that are based on discrete acts, as they were in this case, because “[p]ay discrimination is a discrete act that occurs each time an individual is paid wages that have been lowered as a result of a discriminatory practice or decision.” Id. And failure to promote is also treated as a discrete act even if it occurs as part of a classwide pattern or practice. Id.
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