©2023 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 67 Special Assistant and already had determined his and [charging party’s] pay at the time that the Internal Investigation began.’”553 In another recent case, EEOC v. University of Miami,554 the EEOC alleged that a university paid a female professor less than her counterpart who performed the same job. The university had hired the charging party as an associate professor during the same year that it hired a male professor with comparable qualifications for a lower-ranked position in the same department at a higher salary.555 Thereafter, the university’s policy of making fixed pay increases only exacerbated the situation over time, so that by the time they became full professors, the male professor made approximately $28,000 more than the female professor.556 The university argued that the professors did not perform substantially equal work and that the salary discrepancy could be explained by a factor other than sex. The court first held that a reasonable jury reviewing the duties of the two professors could conclude that their positions were substantially equal.557 Although the two professors taught different political science specialties, the court noted that they both had doctorate degrees, generally taught the same number of courses at the introductory and advanced levels, and were subject to the same university requirements regarding teaching and research. The university argued that the two professors were not comparable because of their different areas of specialization, because they published in different journals, and because the male professor had published in more prestigious journals. The court found this evidence unpersuasive because “the professors’ specializations within the field of political science do not appear to be dispositive as to the question of substantial job similarity,” but “[r]ather, subspecialties are considered when evaluating whether a professor conducted research and was subsequently published in highranking journals relevant to their respective specializations.”558 The court was ultimately convinced that “the quality of [comparator’s] publications and number of cite counts are determinative of this inquiry because the Plaintiff's prima facie case requires a comparison of jobs, not the skills and qualifications of the individuals who hold the jobs.”559 The University also argued that the salary disparity between the two professors was due to a factor other than sex; namely, they were “market-based,” that annual raises were determined by individual performance, and that multiple salary analyses confirmed that there was no relationship between gender and salary at the University.560 The court could not credit the “market-based” theory due to the absence of credible evidence as to what the market was at the time the two professors were hired. The court was also not convinced that the pay disparity could be explained by disproportionate performance. Although the university claimed the charging party published in less prestigious journals than the male professor, the Dean had admitted he had not reviewed her salary increases or the reasons for the amounts that had been awarded in each year, thus undercutting the university’s explanation.561 Moreover, the court did find evidence of gender disparities at the university, including evidence that it placed a higher service requirement on female professors and had proactively increased male professors’ salaries to close the gap with female professors, but had not done so for the charging party, despite the fact that her Department Chair had conceded she was “grossly underpaid.”562 Turning to the Title VII claim, the court held that “[b]ecause the EEOC has established its disparate pay claim under the more rigorous analysis of the Equal Pay Act, the court finds that it has met its initial burden of showing its prima facie case under Title VII.”563 The court also found that the university met its burden to articulate legitimate bases for the alleged pay disparity, but, for the same reasons that doomed the university’s 553 Id. at 188-89 (internal citations omitted). 554 EEOC v. Univ. of Miami, No. 19-cv-23131, 2021 WL 4459683 (S.D. Fla. Sept. 29, 2021). 555 Id. at *6. 556 Id. 557 Id. at *8. 558 Id. 559 Id. 560 Id. at *9. 561 Id. at *10. 562 Id. at *11. 563 Id. at *12.
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