©2024 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 15 Wage Discrimination or Promotion Discrimination. Because it is often the case that higher pay accompanies promotions, pay discrimination claims are often combined and conflated with promotion discrimination claims. But those are different theories of discrimination, governed by different statutory schemes. Although both types of claims can be brought under Title VII, only pay discrimination claims can be brought under the EPA. A failure to recognize and respect this difference can be fatal to a plaintiff’s case. For example, in Williams v. State of Illinois,98 a Special Assistant to the General Counsel for the former Governor of Illinois alleged she was discriminated against under, among other laws, the EPA, based on the fact that comparable male employees were promoted ahead of her and were therefore paid more.99 The court granted the employer’s motion to dismiss the EPA claim, noting that the complaint alleged that both male and female employees had been promoted over her.100 The court held that those facts contradicted what was needed to establish a viable theory of liability, and that plaintiff had thereby pleaded herself out of court. “Because the Equal Pay Act requires an allegation that different wages are paid to employees of another sex for equal work, the allegation that other women were promoted—and the absence of an allegation that men were paid more for equal work—defeats the Equal Pay Act claim.”101 The dismissal was without prejudiced to plaintiff’s right to amend her complaint. Similarly, in Brown-Edwards v. Marshall,102 a Special Agent in a department of the state Attorney General (an investigatory role) alleged she was discriminated against due to her race and gender when she was repeatedly passed over for promotion to Senior Special Agent.103 She pointed to a comparator who had been promoted to the Senior Special Agent position and earned more in salary as a result.104 The court granted summary judgment to the employer on her EPA claim for two reasons. First, the court held that “she has not shown—and cannot show—that she and [comparator] performed substantially similar work as their positions had different job titles, different job responsibilities, and were in different divisions of the OAG.”105 Second, and more fundamentally, the court held that the plaintiff could not base an EPA pay discrimination claim on what was, in essence, a Title VII promotion discrimination claim. “An employer's failure to promote and discriminatory pay practices are discrete actions that must be challenged and asserted separately.”106 Because the promotion decision happened outside the statute of limitations for her Title VII claim, she could not bring that claim. Nor could she rely on the continuing violation doctrine to revive it, because that doctrine does not extend the statute of limitations for discrete discriminatory acts, such as a failure to promote. “Simply put, [plaintiff] cannot disguise an untimely failure-to-promote claim as a pay discrimination claim merely because she was paid less than she would have made had she been promoted.”107 Even if an equal pay plaintiff could have had a viable equal pay claim at one time, intervening promotions can vitiate that claim unless the plaintiff can show that their pay remained below that of their comparable peers in the new positions they were promoted into. For example, in Jeffords v. Navex Global, Inc.,108 a Senior Vice President based her pay discrimination claim on a spreadsheet that she inadvertently received in 2013, when she was still a Vice President. The spreadsheet contained salary information for all of her employer’s employees. She believed that spreadsheet showed a pay disparity between herself and similarly-situated male colleagues.109 She relied upon that spreadsheet as proof of her equal pay claim. The court held that her claim was time-barred because it accrued when she received the 98 Williams v. State of Ill., No. 1:21-cv-02495, 2022 WL 952745 (N.D. Ill. Mar. 30, 2022). 99 Id. at *1. 100 Id. at *4. 101 Id. 102 Brown-Edwards v. Marshall, No. 2:20-cv-876-RAH, 2023 WL 121450 (M.D. Ala. Jan. 6, 2023). 103 Id. at *2. 104 Id. at *4. 105 Id. at *10. 106 Id. at *11. 107 Id. 108 Jeffords v. Navex Global, Inc., No. 3:21-cv-00414-SB, 2023 WL 2986722 (D. Ore. Feb. 17, 2023). 109 Id. at *1.
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