10 | Developments in Equal Pay Litigation ©2024 Seyfarth Shaw LLP establish a prima facie EPA case is a source of disagreement among our sister circuits.”52 However, the court declined to weigh in on the issue, holding that it need not do so because it affirmed the district court on other grounds supported by the record. However, the Second Circuit also noted that the issue was also undecided under the New York Equal Pay Law, but that was a question that should first be answered by the district court: “The separate question of how many comparators are necessary to establish a prima facie case under New York Labor Law § 194(1) is one that the District Court did not consider. . . . should the District Court decide to invoke its supplemental jurisdiction over [plaintiff’s] § 194(1) claim on remand, it must determine whether a single male comparator is sufficient to establish a prima facie case under § 194(1).”53 This issue continues to divide the district courts. Despite some courts’ adherence to the “one-comparator rule,” many courts are unwilling to allow an equal pay lawsuit to proceed where the evidence tends to refute an inference of wage discrimination.54 For example, in Hatzimihalis v. SMBC Nikko Securities America, Inc.,55 another case in the Southern District of New York—decided after the district court’s decision in Eisenhauer (but before the Second Circuit’s decision)—a Vice President of an investment firm alleged that she was underpaid compared to male Vice Presidents in the same investment group. The employer argued that plaintiff could not establish a prima facie case of wage discrimination because her male comparators were both paid less than another female comparator in the same group. Thus the evidence showed that “[employer] paid Plaintiff less than comparable male employees, but it arguably does not show that [employer] paid comparable female employees as a group less than it paid comparable male employees as a group.”56 The court turned again to Lavin-McEleney v. Marist College.57 In that case, the plaintiff had identified a specific comparator and also submitted a multiple regression analysis that showed that her salary was lower than the salary a male professor with her same characteristics would expect to receive. According to the district court, “in Lavin-McEleney the Second Circuit favorably cited the Ninth Circuit's explicit statement of law that a prima facie EPA case requires a comparison between the plaintiff's compensation and the average compensation of comparable employees of the opposite sex.”58 The court went on to distinguish a different Second Circuit case, Talwar v. Staten Island University Hospital,59 where the plaintiff had been paid more than two male comparators, but less than another male and one female comparator. The Second Circuit in that case held that the plaintiff had failed to establish a prima facie case because she could not show that females, as a group, were paid less than males.60 The district court rejected the reasoning of Talwar, in favor of what it viewed as the contrary holding in LavinMcEleney. The court found the latter opinion’s holding to be a more plausible interpretation because the EPA prohibits an employer from paying a woman less than it pays comparable men for equal work, regardless of whether or not other women are also paid unequally for performing equal work. “[I]t is unclear why one individual's ability to recover for violations of the EPA should depend on whether other employees' compensation also violated the law: one would expect one woman's being paid the same as comparable men to prevent her from recovering under the EPA, but not also to prevent other women who were paid 52 Eisenhauer, 84 F.4th at n.83 (citing Equal Emp. Opportunity Comm'n v. Md. Ins. Admin., 879 F.3d 114, 122 (4th Cir. 2018), Price v. Lockheed Space Operations Co., 856 F.2d 1503, 1505 (11th Cir. 1988), and Hein v. Or. Coll. of Educ., 718 F.2d 910, 916 (9th Cir. 1983)). 53 Id. 54 See, e.g., Shen v. Auto. Club of Mo., Inc., No. 4:20-cv-626-SNLJ, 2023 WL 3948859 (E.D. Mo. June 12, 2023) (holding plaintiff failed to establish prima facie case where “her salary was higher than seven other male employees, and she made more than the average salary of all coworkers”: “The Eighth Circuit has found that plaintiffs fail to prove their prima facie case when evidence establishes that the female plaintiff was paid just as much or more than male counterparts”) (citing O'Reilly v. Daugherty Sys., Inc., No. 4:18-cv-01283-SRC, 2021 WL 4504426, at *5 (E.D. Mo. Sept. 30, 2021)). 55 Hatzimihalis v. SMBC Nikko Sec. Am., Inc., No. 20-cv-8037(JPC), 2023 WL 3764823 (S.D.N.Y. June 1, 2023). 56 Id. at *5. 57 Lavin-McEleney v. Marist College, 239 F.3d 476 (2d Cir. 2001). 58 Hatzimihalis, 2023 WL 3764823, at *6 (citing Hein v. Or. Coll. of Educ., 718 F.2d 910, 916 (9th Cir. 1983)). 59 Talwar v. Staten Island Univ. Hosp., 610 F. App'x 28 (2d Cir. 2015). 60 Hatzimihalis, 2023 WL 3764823, at *6.
RkJQdWJsaXNoZXIy OTkwMTQ4