©2024 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 21 departmental, college, and university committees and in other roles in service to the institution.’”153 Notably, however, the Ninth Circuit’s reasoning applied to professors within the same academic discipline and department; it did not extend to all professors across the university regardless of academic field or department.154 In Goodwin v. Grisham,155 the director of a state Educational Retirement Board alleged, among other things, that she was paid less than the male State Investment Officer, which she alleged were comparable positions. The court held otherwise, basing its analysis on the relevant statutes and regulations relating to those positions, which demonstrated that those jobs were not equal in terms of the type of work they entailed. Among other things, the court found that the State Investment Officer was primarily responsible for managing and investing public money, but that was “not so unambiguously the heart of the ERB Director’s duties.”156 The court dismissed plaintiff’s complaint, concluding: “ Simply put, [plaintiff’s] allegations suggest the ERB Director is a manager with some investment oversight, while the State Investment Officer is an investor with some management duties. It follows that the skill set demanded and the pool of talent drawn from would be distinct enough to anticipate differences in compensation.”157 Attorneys and other legal professionals have also found it difficult to establish this element of a prima facie case. For example, in Tolton v. Jones Day,158 the District Court for the District of Columbia held that associate attorneys of a large law firm did not necessarily perform equal work as other associates in the same class year if they did not work in the same geographic area or the same practice group. Similarly, in Smith v. Office of the Attorney General, State of Alabama,159 the District Court for the Middle District of Alabama held that the work of criminal investigators who focused on different types of crimes did not perform equal work. The court held that the plaintiff failed to establish a prima facie case of wage discrimination because her work investigating crimes of violence against women and children were “a different animal entirely” than the public corruption and similar crimes that were investigated by her chosen comparators in the Special Prosecutions Division.160 And in Dass v. City University of New 153 Freyd, 990 F.3d at 1221. The Ninth Circuit also noted that the university itself regularly compares faculty members when making salary decisions. Responding to an argument in a dissenting opinion, the court held that “the granularity with which the dissent picks through the facts would gut the Equal Pay Act for all but the most perfunctory of tasks. The Equal Pay Act, however, is ‘broadly remedial,’ and should be so ‘construed and applied’ as to be ‘workable across the broad range of industries covered by the Act.’” Id. at 1222. 154 See also EEOC v. George Washington Univ., No. 17-cv-1978, 2019 WL 2028398, at *4 (D.D.C. May 8, 2019) (denying an employer’s motion to dismiss even though the complaint at issue did not explicitly allege how the positions at issue were equal with respect to skill, effort, and responsibility, holding that the complaint “straightforwardly pleads that [plaintiff] was paid less as Executive Assistant than [comparator] was paid as a Special Assistant for substantially the same job responsibilities”); EEOC v. Univ. of Miami, No. 19-cv-23131-Civ-Scola, 2019 WL 6497888, at *2 (S.D. Fla. Dec. 3, 2019) (denying a motion to dismiss claims brought by professors in the same department because the EEOC had supported its claims of pay discrimination with numerous allegations relating to the professors’ job duties, such as teaching classes and publishing books and articles, and allegations that the female professor had two more years of teaching experience and had published more works, and because the EEOC had alleged that both professors were in the same department and had been promoted to full professor at the same time after a review by the same committee based on the same criteria). 155 Goodwin v. Grisham, No. 1:21-cv-00483-JHR-KK, 2023 WL 3569067 (D.N.M. May 19, 2023). 156 Id. at *7. 157 Id. at *8. 158 Tolton v. Jones Day, No. 19-cv-945 (RDM), 2020 WL 2542129 (D.D.C. May 19, 2020). In that case, a group of female attorneys alleged a variety of theories of sex discrimination against their former law firm employer. The court held that some of the plaintiffs had alleged sufficient facts to state an EPA claim, while others did not. In particular, the court did not credit plaintiffs’ allegations that they were not paid “Cravath market pay” because they had failed to allege that all of the employer’s offices around the country operated in the same “market,” or that the market they were referring to would have applied to offices outside of New York. Id. at *30. But the court did allow the claims of some plaintiffs to proceed where they plausibly alleged that they earned less than male comparators who were at their same level and performed similar work. Id. 159 Smith v. Office of the Att’y Gen., State of Ala., No. 2:17-cv-00297-RAH, 2020 WL 4015622 (M.D. Ala. July 16, 2020). In that case, an investigator with the Office of the Attorney General of Alabama alleged she was paid less than male comparators who worked in a different division of the same office. 160 Id. at *7. The court held that a distinction should be made between general training and education required for an investigator position generally versus the specific training and expertise required of certain investigators. “A lawyer or detective trained for or mostly familiar with one—and who has excelled in that particular area of law—will not necessarily possess the expertise required to thrive in the other, at least without some extended and specialized training.” Id. The different levels of skill required meant that those jobs were not “virtually identical” as the EPA requires. Id. at *8.
RkJQdWJsaXNoZXIy OTkwMTQ4