©2023 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 7 CASE LAW DEVELOPMENTS IN 2022 AND EARLY 2023 Employers’ compensation practices are increasingly being challenged in court by aggressive plaintiffs’ counsel, the Equal Employment Opportunity Commission, and state agencies. The primary targets for this type of litigation have been companies in the health, education, finance, legal, and technology industries. Those cases continue to reshape the landscape of equal pay litigation across the country. A. Proving The Prima Facie Case The federal EPA utilizes a burden-shifting mechanism for establishing liability. First, an employee must establish a prima facie case of discrimination by showing that: (1) different wages were paid to employees of the opposite sex; (2) the employees performed equal work requiring equal skill, effort, and responsibility; and (3) the employees shared similar working conditions.37 State laws can differ with respect to these factors, but most state laws share a similar burden-shifting framework. Employees must first prove the basic elements of a cause of action before the burden shifts to the employer to show that the alleged wage disparity is for some legitimate, non-discriminatory reason. There is no requirement under the federal EPA for a plaintiff to prove any discriminatory intent or animus on the part of the employer. If the employee establishes a prima facie case, the burden of persuasion then shifts to the employer, who then must establish its defense. Under the federal EPA, the permissible range of legitimate reasons for a wage disparity are explicitly set forth in the statute as four affirmative defenses. They are: (1) a seniority system; (2) a merit system; (3) a system which measures earnings by quantity or quality of production; or (4) any factor other than sex. The fourth defense, the “factor other than sex” defense is a catchall provision that attempts to account for the wide variety of legitimate non-discriminatory reasons that may exist for paying one employee differently than another employee. Like the factors used to establish a prima facie case, the affirmative defenses allowed by individual state laws can be different from those established by the federal EPA. However, with some exceptions, most of those affirmative defenses would also qualify as an affirmative defense under the federal EPA’s catchall “factor other than sex” defense. Accordingly, this analysis will focus on developments under the federal EPA, while noting significant variations in state law where appropriate. This burden-shifting framework forms the skeleton of all EPA claims. It is important to note, however, that even if an employer meets its burden to establish an affirmative defense to an employee’s prima facie 37 Even this skeletal outline of a plaintiff’s prima facie case has not escaped judicial scrutiny in recent years. For example, the district court for the District of Columbia recently had to clarify that a prima facie EPA claim consists of only two elements, not three. In Savignac v. Jones Day, 539 F. Supp. 3d 107 (D.D.C. Apr. 28, 2021), the court was reconsidering its own earlier decision, which had implicitly adopted a standard that would impose on EPA plaintiffs the initial burden of pleading that they were (1) paid less than employees of the opposite sex, (2) for work on jobs requiring “equal skill, effort, and responsibility” that are “performed under similar working conditions,” and (3) that they actually performed “equal work” on the equivalent job. Id. at 109. Quoting Justice Frankfurter, the court noted that “[w]isdom too often never comes, and so one ought not to reject it merely because it comes late,” id. (quoting Henslee v. Union Planters Nat'l Bank & Trust Co., 335 U.S. 595, 600 (1949) (Frankfurter, J., dissenting)), and overturned its earlier decision that had incorrectly applied a three-element test to determine if the plaintiff in that case had met her pleading burden. The court analyzed the language of the EPA closely, noting that it prohibits employers from paying different amounts “for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.” Id. (quoting 29 U.S.C. § 206(d)(1)). Under plaintiff’s interpretation, which was adopted by the court, the part of that clause that appears after “equal work,” is meant to define that phrase and is therefore in that sense equivalent to “equal work”; the clause was not intended to state two separate requirements, such that plaintiffs would have to show that they performed equal work and that their jobs were also “equal” or similar as defined by the second part of that clause. Id. at 112-13. The court readily acknowledged that this interpretation was “not obvious from the text alone,” nevertheless, it held that that interpretation best accorded with the Supreme Court’s seminal decision, Corning Glass Works v. Brennan. Id. at 112 (citing Corning Glass Works v. Brennan, 417 U.S. 188 (1974)).
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