8 | Developments in Equal Pay Litigation ©2023 Seyfarth Shaw LLP case, the employee still has an opportunity to show that the employer’s stated reason for the wage disparity is merely a pretext for discrimination. 1. Establishing A Wage Disparity The first and most fundamental element of a plaintiff’s prima facie case is establishing that a wage disparity exists, i.e., that different wages were paid to employees of a different sex for the same work. In a case that involves just one or a handful of plaintiffs, this might only require the identification of one or more alleged “comparator” employees who were paid at a higher rate. This requirement is often not difficult to meet. The “One-Comparator Rule”. Many courts have held that a plaintiff can establish a wage disparity by comparing themselves to just one member of the opposite sex who is paid more, even where the plaintiff is better paid then other comparable employees of the opposite sex.38 However, other courts have pointed to such situations as tending to disprove the existence of discrimination if, for example, plaintiff was paid more than other comparators of the opposite sex, or if other members of plaintiff’s sex were paid more than plaintiff and some members of the opposite sex.39 This question, whether an equal pay plaintiff may establish a prima facie case by comparing themselves to just one comparator, seems like a straightforward legal issue. But it has given rise to many conflicting decisions among different courts and different circuits. For example, In O’Reilly v. Daugherty Systems, Inc.,40 the District Court for the Eastern District of Missouri had to pick through inconsistent case law on this point just within its own circuit. The plaintiff argued she had established her prima facie case because she had identified at least one male comparator who was paid more than her.41 Relying on the sheer weight of authority, and without trying to resolve the conflict directly, the court noted that “district courts in this circuit have repeatedly found that plaintiffs fail to establish a prima facie case when the evidence supports that the number of males paid the same or less than the plaintiff significantly outnumbers the number of males paid more.”42 The court concluded that the plaintiff could not base her prima facie case on one comparator: “[Plaintiff] admitted that 10 male employees were either paid less than she or did not perform equal work. Given that alleged 38 See, e.g., Newman v. Amazon.com, Inc., No. 21-cv-531(DLF), 2022 WL 971297, at *6 (D.D.C. Mar. 31, 2022) (holding that a female plaintiff did not plead herself out of court by pointing to female comparators in addition to males: “An EPA plaintiff need not allege that other female coworkers were paid less than male coworkers. . .. She need only allege that she was paid less than male employees who performed similar work”) (internal citations omitted); Gutierrez v. City of Converse, No. 5:17-cv-01233-JKP, 2020 WL 156707, at *3 (W.D. Tex. Jan. 10, 2020) (acknowledging that the evidence showed that a female firefighter was better paid than all of her male peers with the exception of one, but holding: “[i]t is enough for the plaintiff to show that there is discrimination in pay with respect to one employee of the opposite sex”) (quoting Lenihan v. Boeing Co., 994 F. Supp. 776, 799 (S.D. Tex. 1998)); Allen v. Staples, Inc., 84 Cal. App. 5th 188, 194-95 (2022) (holding that plaintiff had established prima facie case by pointing to one comparator, even though employer showed that females in plaintiff’s position were paid more than males on average, and that some males were paid less than plaintiff: “Authorities under the federal EPA have held that a plaintiff claiming gender-based pay disparity may establish a prima facie case by showing that she was paid less in salary than a single male comparator”). 39 See, e.g., Davis v. Inmar, Inc., No. 21-cv-03779 SBA, 2022 WL 3722122 (N.D. Cal. Aug. 29, 2022) (granting motion to dismiss equal pay claim because complaint alleged only one male comparator was paid more than plaintiff, without alleging facts that would justify that comparison: “the Complaint compares Davis to a single male employee, without alleging facts to support such a limited comparison”); Jones v. Jefferson City Pub. Sch., No. 2:18-cv-4054, 2019 WL 1118557, at *2 (W.D. Mo. Mar. 11, 2019) (holding that plaintiff’s admission that both male and female teachers were paid more than him was fatal to his claim because “if sex-based discrimination is not the reason for disparity in pay, the disparity cannot form the basis of a claim under the Equal Pay Act”). 40 O’Reilly v. Daugherty Sys., Inc., No. 4:18-cv-01283 SRC, 2021 WL 4504426 (E.D. Mo. Sept. 30, 2021). 41 Id. at *4. The court first took note of apparently inconsistent decisions by the Eighth Circuit on this point. In Hutchins v. Int'l Bhd. of Teamsters, 177 F.3d 1076 (8th Cir. 1999), the Eighth Circuit upheld a decision that found a prima facie case where the evidence showed that plaintiff was paid less than twelve male employees, but which also showed that plaintiff was paid more than eight comparable males, and that five other comparable females were paid higher salaries than their male peers. O’Reilly, 2021 WL 4504426, at *5; see also Euerle-Wehle v. United Parcel Serv., Inc., 181 F.3d 898, 901 (8th Cir. 1999). On the other hand, in Sowell v. Alumina Ceramics, Inc., 251 F.3d 678, 684 (8th Cir. 2001), the Eighth Circuit found that a plaintiff failed to establish a prima facie case under Title VII where the evidence showed that she was paid the same as, or more than, at least some males in the same position. O’Reilly, 2021 WL 4504426, at *5. 42 O’Reilly, 2021 WL 4504426, at *5 (citing Evans v. Autozone Stores, Inc., No. 05-cv-1086, 2008 WL 697752, at *10 (W.D. Ark. Mar. 13, 2008); Garrard v. First Step, Inc., No. 1:14-cv-1033, 2015 WL 2248217, at *2 (W.D. Ark. May 13, 2015); Peniska v. CJ Foods Inc., No. 8:19-cv-277, 2021 WL 24729 (D. Neb. Jan. 4, 2021)).
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