38 | Developments in Equal Pay Litigation ©2023 Seyfarth Shaw LLP from broadbanding was not inherently discriminatory because senior male colleagues were impacted similarly or worse. “On this record, had [plaintiff] been a man and everything else remained the same, neither [plaintiff’s] nor the new hires’ starting salaries would have been different.”301 Economic concerns, such as competitive pressures to attract top talent, as well as financial difficulties and corporate cutbacks, are often relied upon as factors other than sex. For example, in Nazinitsky v. Integris Baptist Medical Center, Inc.,302 the court found that the employer’s practice of paying physicians based on the market value range of their medical specialty was a legitimate factor other than sex.303 Although that alone did not account for the entire salary difference—because each physician is compensated within a range associated with their medical specialty—that, coupled with the physicians’ different levels of experience, added up to a bona fide factor other than sex: “[plaintiff’s] specialty placed her in a lower compensation range than her male comparators—creating a wage disparity—and her lack of experience increased that disparity even further.”304 Similarly, in Martin v. Delta County Memorial Hospital District,305 a hospital successfully argued that it had to pay a male physician a higher salary due to the more difficult market conditions at the time he was hired.306 And in Barnett v. Roanoke County School Board,307 the employer defended the pay disparity on the basis of the “sense of urgency” that surrounded plaintiff’s comparator teacher’s hiring, including the “late timing of the vacancy and the impending start of the school year,” and that the only other finalist for the position withdrew from consideration.308 Legitimate economic concerns can even include an employer’s concern about internal pay equity. In Korty v. Indiana University Health, Inc.,309 the court held that an employer’s own attempts at promoting internal pay equity could be a “factor other than sex” defense. In that case, a specialist medical staff quality and peer review nurse at a statewide healthcare organization alleged pay discrimination when her employer hired her replacement at a higher salary. Her replacement was chosen from within the company, and he was in a position that paid more than plaintiff’s position. The employer wanted to hire the replacement, however, and so it subjected his starting salary to a number of reviews, including an internal equity review, to see what it could offer as a starting salary based on market range, internal equity, and the replacement’s knowledge, skills and abilities.310 The replacement negotiated for an even higher salary, which the employer agreed to. The employer documented its reasons for offering the higher salary to the replacement, noting that he had obtained a number of pay raises in his prior position and was therefore starting at a higher rate.311 301 Id. at *10. 302 Nazinitsky v. Integris Baptist Med. Ctr., Inc., No. 19-cv-043-R, 2020 WL 1957914 (W.D. Okla. Apr. 23, 2020). The court assumed without deciding that she had met her burden to establish that she performed work that was substantially equal to her alleged comparators. Id. at *4. It then considered the employer’s affirmative defense that her salary had been based on two factors other than sex: (1) a bona fide, gender-neutral pay classification system based on marketplace value; and (2) employee experience. Id. 303 Id. 304 Id. at *5. On appeal, the Tenth Circuit found that the market compensation for the specialists plaintiff was comparing herself to was higher than that provided for her specialty. According to the court’s calculations, that difference alone accounted for roughly 40% of the alleged wage differential. Nazinitsky v. Integris Baptist Med. Ctr., Inc., 852 F. App’x 365, 368 (10th Cir. 2021).The court then concluded that the remaining part of the differential was explained by differences in levels of work experience: “Common sense tells us as much here. [Plaintiff] was a first-year physician and is comparing herself to physicians with at least seven years’ more experience.” Id. 305 Martin v. Delta Cnty. Mem’l Hosp. Dist., No. 19-cv-2339-STV, 2021 WL 6112878 (D. Colo. Dec. 23, 2021). 306 Id. at *12. The employer presented evidence that, at the time, it had been unsuccessful in trying to hire a family practice physician for under $170,000 and was therefore advised by recruitment firms that it needed to raise its offer to $170,000-$200,000 to be competitive in the market. Id. “Based upon the uncontradicted evidence that [comparator’s] pay was based upon market conditions and not sex, the Court concludes that no rational jury could find that the pay differential between [comparator] and [plaintiff] were based upon sex.” Id. 307 Barnett v. Roanoke Cnty. Sch. Bd., No. 7:20-cv-663, 2021 WL 5611317 (W.D. Va. Nov. 30, 2021). 308 Id. at *8. The employer also claimed that the comparator was a better negotiator than plaintiff, among other things. Applying the more lenient burden-shifting standards applicable to plaintiffs’ Title VII claim, the court held that this was sufficient to place the burden back on Plaintiff to prove pretext. Id. at *9. 309 Korty v. Ind. Univ. Health, Inc., No. 4:21-cv-33-PPS, 2022 WL 17830485, at *4 (N.D. Ind. Dec. 21, 2022). 310 Id. at *2. 311 Id. at *3.
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