12 | Developments in Equal Pay Litigation ©2024 Seyfarth Shaw LLP total compensation for [plaintiff] and [predecessor] does not establish that [predecessor] received higher compensation as required under the Equal Pay Act.”68 But in Sempowich v. Tactile Systems Technology, Inc.,69 an appeal that was joined by the EEOC as amicus curiae in favor of plaintiff, the Fourth Circuit reversed a decision where the lower court had rejected an equal pay claim because the plaintiff was paid more in total compensation than her comparators.70 According to the Fourth Circuit, “[t]he text of the Equal Pay Act unambiguously states that an employer may not ‘discriminate . . . between employees on the basis of sex by paying wages to employees . . . at a rate less than the rate at which he pays wages to employees of the opposite sex.’”71 There was no need to consider the regulatory definition of “wages” because the statute clearly puts its emphasis on wage rates. But even so, the Fourth Circuit held that the district court had misinterpreted the definition: “The term ‘wages’ includes commissions because, just as with salary, an employer could not pay commissions to a female employee at a lower rate than a similarly situated male employee. This does not mean that all types of remuneration should be combined into one lump sum when comparing the earnings of a male and female employee.”72 Similarly, in Wiler v. Kent State University,73 the District Court for the Northern District of Ohio held that an equal pay claim must be based on a difference in base compensation rather than total compensation. In that case, a female head coach of a university’s field hockey team alleged that her employer violated the EPA and Title VII by paying her less than her male counterparts. But her claim was based on the fact that other coaches at the same university earned a higher total compensation, which was the sum of their pay, performance bonuses, and camp income.74 The court held that the proper inquiry in the Sixth Circuit focuses on rates of pay, rather than total compensation, which in this case meant coaches’ base salaries and bonus rates, not camp income, because coaches had no obligation to run a camp, and the compensation earned from camps varied depending on factors over which the university had no control.75 “Where an employee exercises a significant degree of discretion or control over earning a portion of her income, that portion cannot comprise part of the common denominator for the base rate of pay. A contrary conclusion risks incentivizing strategic behavior for artificial or leverage purposes.”76 Non-Wage Components of Compensation. Questions also frequently arise regarding what types of compensation should be compared to establish a wage disparity, and even what counts as “compensation” at all. A plaintiff’s reliance on less clear-cut bases of compensation can create problems of proof that may result in dismissal.77 For example, in the high-profile case, Morgan v. U.S. Soccer 68 Id. See also Schrof v. Clean Earth, Inc., No. BPG-22-cv-1533, 2023 WL 3763984 (D. Md. June 1, 2023) (holding that outside salesperson had adequately alleged a wage disparity even though she and all outside salespeople were subject to the same commission plan, because she alleged males who met their goals received 20% commission and overages, while she did not). 69 Sempowich v. Tactile Sys. Tech., Inc., 19 F.4th 643 (4th Cir. 2021). 70 In that case, a regional sales manager for a medical device manufacturer alleged she was paid less than a male comparator when comparing base salaries. The district court held that she failed to establish a prima facie case of pay discrimination because she was actually paid more than her comparator when comparing total compensation, meaning base salary plus commissions. Sempowich v. Tactile Sys. Tech., Inc., No. 5:18-cv-488-D, 2020 WL 6265076, at *23 (E.D.N.C. Oct. 23, 2020). The court applied the EEOC’s definition of “wages,” which includes all payments made to an employee whether provided as base salary, bonus, or any other form of compensation. Id. Plaintiff argued that including her incentive compensation would frustrate the purpose of the EPA because it would require “harder work for commissioned employees with lower base salaries to achieve equal pay.” Id. The court rejected that argument, holding that the EEOC’s definition of wages comports with the text of the EPA and Supreme Court and Fourth Circuit precedent. Id. at *23-24. 71 Sempowich, 19 F.4th at 655 (quoting 29 U.S.C. § 206(d)(1)) (emphasis in original). 72 Id. 73 Wiler v. Kent State Univ., 637 F. Supp. 3d 480 (N.D. Ohio 2022). 74 Id. at 484. 75 Id. at 491. 76 Id. Using that metric, the court eliminated all but one of plaintiff’s chosen comparators because they were not paid at a higher rate than plaintiff, even though they earned higher total compensation. Id. at *492-93. The court left it to the jury to decide whether the final comparator’s position was truly equal to plaintiff’s position and whether the university had established its “factor other than sex” defense. Id. at 496. 77 Williamson v. Digital Risk, LLC, No. 6:18-cv-767-Orl-31EJK, 2020 WL 434954, at *5 (M.D. Fla. Jan. 28, 2020) (refusing to dismiss some discrimination claims, including a claim under Title VII, because plaintiff had introduced direct evidence of intentional
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