©2023 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 71 Title VII claims also differ in other, more substantive respects. For example, in EEOC v. First Metropolitan Financial Service, Inc.,587 the EEOC alleged that a financial lending company paid two female Branch Managers less than male Branch Managers. The employer argued plaintiffs did not have substantially similar responsibilities as their male Branch Manager comparators because they had been hired to manage a new branch, which had relatively few outstanding loans, and they therefore had less responsibility compared to managers of more established branches.588 The court held that, although work in more established branches may have impacted managers’ day-to-day responsibilities, the record did not show that those circumstances had any effect on the employer’s decisions regarding their pay: “the supposed high demands imposed on [comparator] did not, according to [employer’s COO’s] deposition, significantly impact [employer’s] decision to pay [comparator] a higher base salary.”589 Turning to the EEOC’s Title VII claim, although the two statutes apply different standards for establishing a prima facie case, the court concluded that “[h]aving found that the Plaintiff successfully established a prima facie case under the Equal Pay Act, the Court also finds that the evidence used under the EPA burden is sufficient to establish a prima facie case under Title VII.”590 The court explained that under the burden shifting scheme of Title VII, “[t]he burden of production now shifts to the Defendant to articulate some legitimate, non-discriminatory reason in light of the four exceptions outlined in the Equal Pay Act.”591 The employer argued that the comparator’s salary had been set at a time when it needed to hire someone quickly or close that branch, and the comparator manager had made a “take it or leave it” demand that the company felt compelled to take. The court held that that satisfied the employer’s burden under the Title VII burden-shifting scheme “because an employer ‘need only articulate—not prove—a legitimate, nondiscriminatory reason,’” to meet its burden of production.592 However, the employer was not able to rebut the EEOC’s claims that those purportedly legitimate reasons were merely a pretext for discrimination; the court found the employer’s reasons “highly suspicious” in light of the fact that it had sometimes allowed even larger branches to operate for short periods of time without a manager.593 As noted above, whether an employer’s proffered explanation for a wage disparity—its “factor other than sex”—qualifies as an affirmative defense under the EPA has been a frequent target of litigation, and, increasingly, the subject of legislative developments in many states. For example, in EEOC v. HunterTannersville Central School District,594 the employer had pled as an affirmative defense that the charging party and her comparator had each negotiated their salaries, and that those negotiations resulted in the alleged salary disparity.595 The EEOC argued that “there is simply no basis for the proposition that a male comparator’s ability to negotiate a higher salary is a legitimate business-related justification to pay a woman less.”596 The court rejected this argument, but noted that other courts had come to different conclusions as to whether salary negotiations, by themselves, could constitute a valid defense to an EPA claim. Given the unsettled nature of the law, the court was unwilling to adopt the EEOC’s interpretation at the pleading stage: “The Court finds that the EEOC did not meet its burden to show that the affirmative 587 EEOC v. First Metro. Fin. Serv., Inc., 449 F. Supp. 3d 638 (N.D. Miss. 2020). Although the EEOC initially brought this case as a class action complaint under the EPA and Title VII, it later informed the court that the class of aggrieved parties who had originally joined the suit had been reduced to only two females. Id. at 642. 588 Id. at 644. 589 Id. The court noted that “equal does not mean identical,” and that “[i]n determining whether job differences are so substantial as to make jobs unequal, it is pertinent to inquire whether and to what extent significance has been given to such differences in setting the wage levels for such jobs.” Id. (quoting 29 CFR § 1620.14(a)). The court also denied the employer’s attempt to meet one of the statutory exceptions found in the EPA, finding that the differences in training and experience could not justify the wage disparity, nor could the managers’ different salary demands and expectations. 590 Id. at 647. 591 Id. at 647-48. 592 Id. at 648 (quoting Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 258, 258 (1981)). 593 Id. at 648-49. 594 EEOC v. Hunter-Tannersville Cent. Sch. Dist., No. 1:21-cv-0352, 2021 WL 5711995 (N.D.N.Y. Dec. 2, 2021). 595 Id. at *3. 596 Id. at *2. The EEOC relied on a Second Circuit case, which held that: “a job classification system resulting in differential pay must be rooted in legitimate business-related differences in work responsibilities and qualifications . . .. Without a job-relatedness requirement, the factor-other-than-sex defense would provide a gaping loophole in the statute through which pretexts for discrimination would be sanctioned.” Id. (quoting Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 525 (2d. Cir. 1992)).
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