16 | Developments in Equal Pay Litigation ©2024 Seyfarth Shaw LLP spreadsheet seven years earlier: “It was at this time—more than seven years before her termination—that [plaintiff] knew or had reason to know of the alleged pay disparity.”110 Moreover, the court held that even if every paycheck since that date had triggered a new statute of limitations—under the continuing violation doctrine—that could not save plaintiff’s claims because she had been promoted several times since that date, and “[t]here is no evidence in the record that [plaintiff] was paid less than her male colleagues for the same work in any of her subsequent roles at [employer].”111 Statistics and Other Methods of Proof. Litigants may sometimes turn to statistics to buttress their case, using them to establish that a wage disparity is due to discrimination, even for single plaintiff cases. But unless the meaning of such statistics is clear, courts may still fall back on a simple comparison of salaries among plaintiffs and their comparators. For example, in Atta v. Cisco Systems, Inc.,112 a female marketing department employee alleged she was paid less than male employees in the same pay grade who worked in the same department. She wanted the court to infer discrimination from the fact that her male workers’ compensation ratios, on average, exceeded the women’s ratios. The court was unwilling to draw that conclusion from the statistics she presented. Among other things, the court held that “statistics may be a piece of circumstantial proof bolstering an inference of discrimination, but to be useful, the statistics must clearly show actual differences in treatment, and their usefulness therefore ‘depends on all of the surrounding facts and circumstances.’”113 The court then compared plaintiff’s salary with those of her male comparators and found that she had been paid more than two male comparators in her first year in their pay grade, and that other differences in pay were explained by other non-discriminatory factors of the employer’s compensation system.114 Proving Wage Disparities in Class and Collective Actions. In class and collective actions, the identification of a wage disparity is even more complex. The use of statistics to show disparities in pay across employee groups is often critical in such cases. For example, in Spencer v. Virginia State University,115 the Fourth Circuit affirmed a decision that rejected an attempt by a tenured Associate Professor in the Department of Sociology to use statistics to establish that she was paid less than termappointed Associate Professors in other departments.116 The court noted the unique features of academia that present special challenges for the EPA claimant: “[p]rofessors are not interchangeable like widgets. Various considerations influence the hiring, promotion, and compensation of different professorial jobs.”117 The Fourth Circuit noted that, in the academic context, “work is an exercise in intellectual creativity that can be judged only according to intricate, field-specific, and often subjective criteria.”118 Accordingly, an EPA plaintiff must provide the court with more than broad generalities to establish a claim.119 The Fourth Circuit held that plaintiff’s expert had failed to identify a general disparity between the pay of men and women at the university: “[h]is efforts revealed no statistically significant disparity within each ‘school.’ If anything, this evidence undermines [plaintiff’s] claimed inference of discrimination.”120 110 Id. at *10. 111 Id. 112 Atta v. Cisco Sys., Inc., No. 1:18-cv-1558-CC-JKL, 2020 WL 7384689 (N.D. Ga. Aug. 3, 2020). 113 Id. at *26 (quoting Int'l Bhd. of Teamsters v. U.S., 431 U.S. 324, 340 (1977)). 114 Id. 115 Spencer v. Va. State Univ., 919 F.3d 199 (4th Cir. 2019). 116 The district court had held, among other things, that the plaintiff had failed to establish that those positions were the same, noting that: “the functional responsibilities that comprised ‘teaching a class’ and the skillset required in doing so varied across all three departments.” Spencer v. Va. State Univ., No. 3:16-cv-989-HEH, 2018 WL 627558, at *9 (E.D. Va. Jan. 30, 2018). But the court also held that the analysis performed by plaintiff’s own expert showed that the university did not suffer from any systemic gender-related wage disparity. Id. at *10. Among other things, plaintiff’s expert found that plaintiff’s comparators were overpaid in comparison to their peers, including both male and female faculty members, and that there was not a statistically significant level of male faculty being paid more than their female counterparts by school. Id. The district court concluded that the “absence of systemic discrimination combined with improper identification of a male comparator suggests a failure to establish a prima facie case.” Id. (quoting Stag v. Bd. of Trs., Craven Cmty. Coll., 55 F.3d 943, 950 (4th Cir. 1995)). 117 Spencer v. Va. State Univ., 919 F.3d 199, 204 (4th Cir. 2019). 118 Id. at 205. 119 Id. 120 Id. at 206.
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