©2024 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 19 decisions absent a prima facie showing of compensation discrimination.”139 Similarly, in Wentzel v. Williams Scotsman Inc.,140 although the court held that the plaintiff had established that the work of two Account Executives was “substantially equal,” summary judgment was granted to the employer because it turned out that plaintiff actually earned more money than her male comparator.141 The plaintiff argued that she had to work significantly harder than her male comparator in a manner that was disproportionate to her additional compensation. The court held that: “[e]ven assuming that [plaintiff] had to work harder than [comparator] for her pay, she was still paid more. The EPA’s very text precludes a claim under these circumstances.”142 2. Showing That Work Is “Equal” Or “Substantially Similar” To establish a prima facie case under the federal EPA, an employee must establish that they were paid less than an employee of the opposite sex—often referred to as a “comparator”—for “equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.”143 This “equal work” requirement can present some significant hurdles to putative plaintiffs, especially those hoping to certify sprawling collective or class actions. Some states, however, have adopted arguably different standards, such as California’s standard: “substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working 139 Id. at *5. 140 Wentzel v. Williams Scotsman Inc., No. 18-cv-02101-PHX-SMB, 2020 WL 1158547 (D. Ariz. Mar. 10, 2020). The plaintiff was the only female Account Executive employed at a modular office space provider. Her comparator was the only other Account Executive working at the same office, who was male. 141 Id. at *3-4. 142 Id. at *4 (emphasis in original). See also Rodriguez v. City of Corpus Christi, No. 2:21-cv-00297, 2023 WL 6149914 (S.D. Tex. Aug. 7, 2023) (rejecting plaintiff’s argument that she was underpaid compared to her comparator—even though she earned more than him in absolute compensation—because his salary was a higher percentage of the market average after employer said all executive employees would receive raises such that they would earn 90-95% of the market average: “[plaintiff] has not cited any authority for her theory that pay relative to the market rate is the proper factor to consider, as opposed to absolute pay”). But see King v. Provo City, No. 2:23-cv-219-DAK-DBP, 2024 WL 170687 (D. Utah Jan. 16, 2024) (allowing equal pay claim to survive motion to dismiss, even though plaintiff was paid the same as her alleged comparator: “If seniority is relevant to Defendants’ defense, it can be equally relevant to [plaintiff’s] prima facie claim. At the pleading stage, [plaintiff] does not know the pay of every other officer in the department. She knows only the pay of one other officer. She alleges that [employer] paid her and [comparator] the same despite the fact that she has four years more experience as a sergeant and that under [employer’s] pay policy that should not be the case.”). 143 29 U.S.C. § 206(d)(1). For a time, Federal employees were required to meet an even higher threshold for proving a prima facie case because controlling Federal Circuit Court authority imposed an extra requirement—that plaintiffs establish that the alleged pay differential was “based on sex.” See, e.g., Gordon v. U.S., 903 F.3d 1248, 1254 (Fed. Cir. 2018), vacated as moot, 754 Fed. App’x (Fed. Cir. 2019) (affirming the dismissal of two Veterans Affairs physicians’ federal EPA claims because they had not established that the alleged pay differential was “based on sex”; i.e., plaintiffs must also show that the “pay differential between the similarly situated employees is ‘historically or presently based on sex,’” but plaintiffs had not done so and could not “satisfy this requirement merely through an inference drawn from the statutory elements of the prima facie case under the EPA”) (quoting Yant v. U.S., 588 F.3d 1369, 1372 (Fed. Cir. 2019)). This extra element of a prima facie case, which only existed in the Court of Federal Claims, was finally overruled in 2023. In Moore v. U.S., 66 F.4th 991 (Fed. Cir. 2023), the Court of Appeals for the Federal Circuit reshaped the elements of an EPA plaintiff’s prima facie case so that they match the elements as articulated by the Supreme Court and every other circuit court, noting that “[e]very other circuit articulates an EPA claimant’s prima facie case the same (or materially the same) way as the Supreme Court.” In discussing the extra element added by the Yant case, namely, a showing that the pay differential “is either historically or presently based on sex,” the court found it problematic in several ways. First, the court held it is “simply extraneous in view of the Supreme Court's articulation of an EPA claimant's prima facie case.” Id. at 996. But secondly, the court held that it violates the principle that an EPA plaintiff need not prove intentional discrimination. According to the Federal Circuit Court of Appeals, “[h]aving to prove—on top of a pay differential across sexes for equal work—that the differential is ‘based on’ sex is tantamount to having to prove that it's because of sex, which is tantamount to having to prove intentional discrimination. Id. (emphasis in original). Finally, the court also held that the extra element distorted the parties’ respective burdens of proof because “[o]nce an EPA claimant carries the burden on the (properly understood) prima facie case, it becomes the employer's burden to prove—as an affirmative defense—that the pay differential has a permissible non-sex-based justification.” Id. (emphasis in original). Accordingly, the court “took the opportunity” to defenestrate the extra element articulated in Yant, concluding: “To make out a prima facie EPA case, a claimant bears the burden to ‘show that an employer pays different wages to employees of opposite sexes ‘for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.’’ . . . Yant is overruled to the extent it is inconsistent with the foregoing.” Id. at 997 (citing and quoting Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974)).
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