©2023 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 41 equally to all non-represented employees regardless of gender, and therefore qualified as a legitimate factor other than sex that explained the pay disparity under both the federal law and California’s revised statute.326 “As arbitrary as the two-year bright line cut off might appear to [plaintiff], [employer’s] uniform criteria for increasing the salaries of the other directors in [plaintiff’s] office (i.e., two men and one woman) constitutes an acceptable ‘differential based on any other factor other than sex.’”327 Similarly, in Gardner v. Wells Fargo Bank, N.A.,328 the court held that the employer had established an affirmative defense under Washington’s new equal pay law. That law requires employers to show that a wage differential is due to a bona fide job-related factor that is consistent with business necessity, is not based on or derived from a gender-based differential, and accounts for the entire differential.329 The plaintiff in that case was a mortgage consultant who had been hired at a far lower starting wage than her male comparator. The employer justified the disparity by pointing to the comparator’s sales experience and connections with local realtors for referrals.330 Among other things, the comparator’s parents had been top-performing realtors in the sales territory where he would work, which gave him connections the employer thought would be “incredibly valuable.”331 ˆThe court concluded that “[comparator’s] pay difference was ‘based in good faith on a bona fide job-related factor or factors.’ Plaintiff did not demonstrate any connections to local realtors, which was a concern raised by [supervisor] during his initial review of Plaintiff's application. Moreover, it is undisputed that another male colleague, [other comparator], was paid the same wages as Plaintiff for the same position.”332 Another recent case, Rowe v. Google LLC,333 involved a technology company that had created a new position, Technical Director, and hired seventeen people for the role. Some were hired at a salary level 8, and some were hired at level 9. The parties vigorously disputed the factors that were used to determine the new employees’ level at hire, but it was undisputed that the company used the same interview questions and rubrics, and the same job description, regardless of level.334 A female Technical Director brought suit under the New York EPA, arguing that she was underhired as a level 8 while some of her male peers were hired as level 9’s, one of whom was hired within a few months of her using the same interview criteria.335 The employer argued that its hiring decisions were based on legitimate, nondiscriminatory factors, including pertinent experience. It introduced evidence from a recruiter explaining its reasons, which had been approved by two Senior Vice Presidents. On the strength of that evidence, the court denied plaintiff’s motion for summary judgment on that affirmative defense.336 However, in Edelman v. NYY Langone Health System,337 the district court for the Southern District of New York held that the recent changes to New York’s equal pay law meant that some defenses were off the table in New York. In that case, a physician alleged she was paid less than male physicians working in the same subspecialty. Both physicians were hired out of private practice. For such physicians, the employer’s usual practice was to negotiate salary while taking into account the assumption of the debts from their private practice. The employer argued, among other things, that it had to match plaintiff’s 326 Id. at *2. 327 Id. at *3 (quoting 29 U.S.C. § 206(d)(1)). The court held that this defense hit all of the additional elements of the defense mandated by California’s new law. The factor was not based on sex because the study recommendations were applied uniformly, it was job related because the two-year rule was used as a proxy for proficiency within a classification, and it was related to business necessity because “[employer] decided on a one-time pay bump based on the two-year cutoff in order to implement the [study’s] recommendation in a financially viable manner.” Id. at *4. 328 Gardner v. Wells Fargo Bank, N.A., No. 2:19-cv-0207-TOR, 2021 WL 2931341 (E.D. Wash. July 12, 2021). 329 See Wash. Rev. Code § 49.58.020(3). 330 Gardner, 2021 WL 2931341, at *7. 331 Id. 332 Id. at *8 (citations omitted). 333 Rowe v. Google LLC, No. 19-cv-8655 (LGS), 2022 WL 4467194 (S.D.N.Y. Sept. 26, 2022). 334 Id. at *1. 335 Id. at *3. 336 Id. at *5. 337 Edelman v. NYY Langone Health Sys., No. 21-cv-502(LGS), 2022 WL 4537972 (S.D.N.Y. Sept. 28, 2022).
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