©2023 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 9 comparators that either were paid less did or did not perform equal work outnumber by a ten-to-one margin the lone alleged comparator who was paid more for equal work, the Court concludes that [plaintiff] fails to establish a prima facie EPA claim.”43 But in Eisenhauer v. Culinary Institute of America,44 the District Court for the Southern District of New York came to a different conclusion. The plaintiff in that case had identified only a single relevant comparator to establish her claim under the EPA and the New York Equal Pay Law. The employer argued that the plaintiff could not rely on a single comparator to establish her prima facie case, especially since there were other comparable males who made less than her and other females who made more than other males.45 Both sides relied on the same Second Circuit case in support of their positions, LavinMcEleney v. Marist College.46 The court examined the reasoning in that case and concluded: “LavinMcEleney, as well as the discussions from the Fourth Circuit cited by the Second Circuit, show that a plaintiff may identify a single male comparator at the initial stage of the case, as Plaintiff has done here, but can later introduce additional data when addressing the ultimate merits of the case at trial. In each case, the plaintiff was required to identify a single male employee at the initial stage of litigation in order to establish a prima facie burden.”47 Despite this rationale, many courts are unwilling to allow an equal pay lawsuit to proceed where the evidence tends to refute the existence of wage discrimination. Some courts have even devised novel tests to escape the “one comparator” rule in certain circumstances. For example, in Duke v. College of San Francisco,48 the District Court for the Northern District of California dismissed the plaintiff’s first attempt at pleading an EPA claim because he had not alleged that he was paid less than the average of wages paid to females who performed substantially equal work.49 But when the plaintiff amended his complaint to compare himself with the only other Associate Vice Chancellor of Student Affairs who held that position during the relevant time period, the case was allowed to proceed: “When there is only a single opposite-gender employee with similar work, it is appropriate to compare the plaintiff's pay against that of a single employee.”50 Other courts hold to the “one comparator” rule even in these circumstances, expressly rejecting the use of a different test for a professional setting.51 Wage Rates or Total Compensation. The question of how to compare compensation can be quite complicated. For example, litigants sometimes dispute whether a court can find a wage disparity based on differences in base salary or wage rate alone, or whether it must also take into account and compare total compensation, including all bonuses, commissions, benefits, and other forms of remuneration. This 43 Id. at *6. 44 Eisenhauer v. Culinary Inst. of Am., No. 19-cv-10933 (PED), 2021 WL 5112625 (S.D.N.Y. Nov. 3, 2021). 45 Id. at *4. 46 Lavin-McEleney v. Marist Coll., 239 F.3d 476 (2d Cir. 2001). 47 Eisenhauer, 2021 WL 5112625, at *5. So, while a single comparator may be insufficient to prove discrimination as a matter of fact before a jury, the court reasoned that the Second Circuit held that it is sufficient to establish a prima facie case prior to trial. The court further reasoned that it would contravene precedent in the Second Circuit to allow an employer to attack a plaintiff’s prima facie case based on the existence of other comparators. To do so, the employer would have to establish as a matter of fact that those comparators were similarly situated to the plaintiff or their comparator. But that question is the province of the jury, and therefore cannot be decided before trial: “Put another way, if Defendant cannot establish the absence of a pay disparity as a matter of law, then Plaintiff's prima facie showing must stand, despite the existence of employees who may serve as counterexamples to wage discrimination at trial.” Id. at *6. 48 Duke v. Coll. of S.F., 445 F. Supp. 3d 216 (N.D. Cal. Apr. 10, 2020). 49 According to the court, “[t]he proper test for establishing a prima facie case in a professional setting such as that of a college is whether the plaintiff is receiving lower wages than the average of wages paid to all employees of the opposite sex performing substantially equal work and similarly situated with respect to any other factors, such as seniority, that affect the wage scale.” Id. at 229 (quoting Hein v. Or. Coll. of Educ., 718 F.2d 910, 916 (9th Cir. 1983)). 50 Id. 51 See, e.g., Mullenix v. Univ. of Tex. at Austin, No. 1:19-cv-1203-LY, 2021 WL 5881690 (W.D. Tex. Dec. 13, 2021) (“[U]nder Fifth Circuit precedent, a plaintiff need only identify one comparator in a position requiring equal skill, effort, and responsibility under similar working conditions as the plaintiff.”) (citing Weaver v. Basic Energy Servs., L.P., 578 F. App'x 449, 451 (5th Cir. 2014); Vasquez v. El Paso Cnty. Cmty. Coll. Dist., 177 F. App'x 422, 425 (5th Cir. 2006); Gillis v. Turner Indus., Ltd., 137 F.3d 1349, (5th Cir. 1998)).
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