©2023 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 47 hours, and consistently had equal or better outcomes.385 At issue was the different bonus structure plaintiff received as compared to another physician in the same subspecialty. The employer argued that the different bonus structures were justified because they were the result of contract negotiations that were unique to each physician, during which plaintiff was represented by a lawyer.386 After examining the course of the negotiations in detail, the court held that the employer had met its burden to establish the “factor other than sex” defense. “Ultimately, the record provides that Defendants relied on multiple factors other than sex to set Plaintiff's bonus structure differently. It looked at the two physicians’ differing levels of experience, their certifications (or in Plaintiff's case, lack thereof), their prior production, and it determined that this structure would allow Plaintiff to ramp up her new practice. Indeed, the fact that Defendant agreed to change Plaintiff's bonus structure after she initiated negotiations further weakens Plaintiff's claim.”387 In particular, the court held that the plaintiff had failed to show that her bonus compensation plan had been set lower because she is a woman, thus defeating her EPA claim.388 Employers should expect equal pay plaintiffs to continue to challenge factors other than sex that they believe are tainted by discrimination. Those arguments are sometimes successful. In Douglas v. Alfasigma USA, Inc.,389 for example, a pair of sales representatives alleged, among other things, that they were underpaid compared to their male colleagues. The employer argued that the complaint was selfdefeating in that it acknowledged that the male comparators were given more favorable sales territories. “[Employer] argues that Plaintiffs have pled themselves out of court by alleging that [supervisor] gave them unfavorable territory compared to their male counterparts. . .. [Employer] basically reads the complaint as an admission that Plaintiffs were less productive than their male counterparts.”390 But plaintiffs had alleged that taking away their sales opportunities was part of the discriminatory pattern they faced. The Court explained that “[t]aking away sales opportunities cannot defeat a sex discrimination claim when taking away sales opportunities was an act of sex discrimination.”391 4. Other Affirmative Defenses A “factor other than sex” is the most commonly asserted defense in equal pay litigation The other defenses are available, however, and they can be just as successful. If employers choose to justify a pay disparity based on a seniority or merit system, or on a system that bases pay on the quantity or quality of output, they must be careful that those systems are well documented and communicated to employees. A system that appears ad hoc or that is inconsistently applied risks being met with skepticism by a court. Merit Systems. A merit system is perhaps the second most frequently relied upon defense, because many employers tie compensation increases to performance metrics. For example, in Mullenix v. University of Texas at Austin,392 a tenured law professor alleged she was underpaid compared to her 385 Id. at *4. The parties agreed that the plaintiff had established a prima facie case due to the different bonus structures and the fact that they performed a similar job under similar working conditions. Id. at *7 386 Id. 387 Id. at *10. 388 Id. See also Briggs v. Univ. of Cincinnati, No. 1:18-cv-552, 2020 WL 5760437, at *7 (S.D. Ohio Sept. 28, 2020) (holding that the employer had established that the wage disparity was the result of a factor other than sex because, among other things, plaintiff’s comparator refused to take the position for less than a salary that was already higher than plaintiff’s at the time of hire. The court held that the university’s proffered reasons to explain the wage disparity, including the comparator’s salary negotiations and higher prior salary, were recognized as legitimate justifications by the Sixth Circuit); Grigsby v. AKAL Security, Inc., No. 5:17-cv-6048-DGK, 2018 WL 3078769, at *7 (W.D. Mo. June 21, 2018) (holding that salary negotiations, without more, established an employer’s affirmative defense, concluding: “there are no facts which would allow a fact finder to find that [employer’s] decision to pay [plaintiff] more than [comparator] in the Director of Airport Operations position was based on gender because his salary was set through negotiations and he was the best available person for the job, necessitating a higher pay”); Smith v. Office of the Att’y Gen., State of Ala., No. 2:17-cv-00297-RAH, 2020 WL 4015622 (M.D. Ala. July 16, 2020) (finding that employer met its burden to establish that wage disparity was due to factor other than sex where the evidence showed that male comparators had “made it known that they had no interest in positions at the OAG if their overall compensation was not commensurate with what they were earning at the FBI”). 389 Douglas v. Alfasigma USA, Inc., No. 19-cv-2272, 2021 WL 2473790 (N.D. Ill. June 17, 2021). 390 Id. at *10. 391 Id. at *11. 392 Mullenix v. Univ. of Tex. at Austin, No. 1:19-cv-1203-LY, 2021 WL 5881690 (W.D. Tex. Dec. 13, 2021).
RkJQdWJsaXNoZXIy OTkwMTQ4