©2023 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 69 to the MAPS midpoint, in order to avoid “internal equity issues.”574 Yet the employer had not been able to show that it had ever compared salaries to avoid those equity issues, and even failed to do so after one of the charging party’s had complained about the disparity. The employer’s failure to act on that complaint also led the court to reject its claim that it had acted in good faith, resulting in the court awarding the charging parties liquidated damages on top of their actual damages.575 The court concluded that “implementation of a public pay system alone cannot justify pay disparity in the absence of any other justification,” and that “mere reliance on MAPS in combination with the record evidence, does not establish that [comparator] was hired based on a factor other than sex.”576 B. EEOC Litigation of Title VII Equal Pay Claims As noted above, the EPA overlaps with Title VII, which prohibits a broader range of discrimination on the basis of sex and also prohibits wage discrimination against other protected groups.577 The interplay between those two statutes has been the source of some interesting decisions over the past few years, including in the context of EEOC litigation. For example, Title VII claims are subject to an administrative exhaustion requirement that does not apply to EPA claims. Before a plaintiff can bring a Title VII claim, they must first file a charge of discrimination with the EEOC. The charge generally is a minimalistic form document that identifies the employer, the name of the individual bringing the charge, a general description of the type of discrimination, a brief statement of the harm(s) alleged, and a statement of whether similar proceedings have been instituted by any state or local agency.578 Nevertheless, the charge is an important document in EEOC litigation because that is what empowers the EEOC to investigate an employer. A question often arises as to whether and to what extent the EEOC can extend its investigation beyond the subject matter of the charge. For example, in Seif v. Board of Trustees of Alabama A&M,579 a tenured professor brought a wage discrimination claim under Title VII, alleging he was paid less than similarly situated employees due to his race, ethnicity, ancestry, and national origin. Because it was a Title VII claim, the plaintiff was required to exhaust his administrative remedies with the EEOC before filing suit, meaning that he was obligated to file a charge with the EEOC and wait to receive a notice of right to sue. The plaintiff had filed a charge of discrimination, but he had only discussed his salary as department Chair in the charge; he did not discuss his salary before he became a Chair. The employer argued that he had not exhausted his administrative remedies with respect to any claim based on his time as a member of the faculty before he made Chair, because he had failed to discuss his base salary as a faculty member in his charge of discrimination.580 The court held that the purpose of the exhaustion requirement is to give the EEOC the first opportunity to investigate alleged discriminatory practices. “Given the purpose of the administrative exhaustion requirement, the Eleventh Circuit has held that ‘a ‘plaintiff's judicial complaint is limited by the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.’”581 The court examined the charge and found that it discussed facts relevant to plaintiff’s salary before becoming Chair: “Language throughout [plaintiff’s] EEOC charge makes clear that his discrimination claim concerns his overall salary—base salary plus $14,400 chair compensation, not simply his $14,400 chair compensation.”582 Accordingly, the court found that the EEOC would have had an opportunity to 574 Id. 575 Id. 576 Id. at *11. 577 Title VII makes it unlawful for an employer to “fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment,” or “to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee,” because of such individual's sex. See 42 U.S.C. § 2000e-2(a)(1)-(2). 578 29 C.F.R. § 1601.12. 579 Seif v. Bd. of Trs. of Ala. A&M, No. 5:15-cv-02374-MHH, 2022 WL 4376730 (N.D. Ala. Aug. 17, 2022). 580 Id. at *6. 581 Id. (quoting Gregory v. Ga. Dep't of Human Res., 355 F.3d 1277, 1279-80 (11th Cir. 2004)). 582 Id. at *7.
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