©2024 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 23 supported by actual differences in job duties, levels of responsibility, credentials, or merit, such classification schemes can be a powerful defense to an equal pay claim. For example, in Downes v. Board of Trustees of Illinois State University,166 a female university Full Professor alleged that she was underpaid compared to other professors at the same university.167 Specifically, she pointed to six other male Full Professors as comparators, all but one of whom had a higher salary. However, the Court held that she had failed to establish a prima facie case because, among other things, some of those comparators held the honorary designations, “University Professor” or “Distinguished Professor,” in addition to being Full Professors. To receive such designations, professors must meet specific requirements, such as “national recognition for research, production, or leadership in creative or scholarly activities,” having been “identified by students, colleagues, or external agencies as an outstanding teacher,” or “contributed significant public service in accord with their academic discipline.”168 Each Professor earning such a designation would receive a bump up in base salary and additional money to fund their future activities, among other things. The other comparators plaintiff had identified had served in an administrative position, such as Department Chair or a Director of an academic center, which also came with salary increases. The plaintiff “testified that she has not been nominated for either honorary distinction and does not believe she meets the qualifications to receive them,” and had not held a Chair or Director position. Accordingly, the court held that plaintiff had failed to establish a prima facie case under the EPA because her comparators “have positions distinguishable from [plaintiff], in that they require different skills, effort, and responsibility.”169 However, in Heatherly v. University of Alabama Board of Trustees,170 the Eleventh Circuit upheld a decision holding that a job evaluation system, on its own, could not establish a prima facie EPA violation. The Eleventh Circuit agreed with the district court in refusing to credit plaintiff’s claim that the employer valued all jobs within the same pay grade equally, noting that the salaries within plaintiff’s own pay grade ranged widely.171 After comparing plaintiff’s job duties versus those of her comparators side-by-side, the Eleventh Circuit concluded that, “a reasonable juror could not find that [plaintiff] engaged in work that was substantially similar to that performed by her alleged comparators.”172 Courts’ tendency to look beneath formal job classifications cuts both ways; plaintiffs can sometimes use this to show they performed equal work to comparators in a more advanced pay grade or level. For 166 Downes v. Bd. of Trs. of Ill. State Univ., No. 19-cv-1411, 2023 WL 2472859 (C.D. Ill. Mar. 10, 2023). 167 Id. at *8. 168 Id. at *8-9. 169 Id. at *9. The court went on to hold that, even if she had established a prima facie case, her employer had established its affirmative defenses. Among other things, the university was able to point to market factors to explain the pay disparity by showing that Plaintiff’s comparators had been started at higher starting salaries because they had completed their Ph.Ds and had prior teaching experience and multiple publications at their time of hire, which are factors commonly awarded in the education industry: “The parties agree that it is common in the education industry for new faculty to be hired at a higher salary than tenured faculty. When referring to market forces in this context, it means [defendant] must compete to get new talent with Ph.Ds. as Assistant Professors.” Id. Finally, the court pointed to the defendant’s merit system for awarding pay increases, which evaluated professors in terms of teaching, research, and service. The court noted that “While [Plaintiff] does not dispute any of her performance evaluations and she often received above standard ratings, many of the other Full Professors consistently received higher performance ratings than [Plaintiff].” Id. 170 Heatherly v. Univ. of Ala. Bd. of Trs., 778 F. App’x 690 (11th Cir. 2019). In that case, the Director of Human Resources for a university brought a federal EPA claim alleging she was paid less than three male employees in director-level positions. Plaintiff argued that the university used a job evaluation system, the Mercer System, to establish pay grades for different jobs based on such factors as knowledge and experience, job complexity and creativity, and physical demands and working conditions, in accordance with standards determined by the university. Heatherly v. Univ. of Ala. Bd. of Trs., No. 7:16-cv-00275-RDP, 2018 WL 3439341, at *13 (N.D. Ala. July 17, 2018). Because the use of that system established the same pay grade for her position versus those of her male comparators, she argued that this established the “equal work” prong of her prima facie case. Id. The court disagreed, holding that binding precedent forced it to look at actual job content to determine whether the skill, effort, and responsibility required is substantially equal; it could not merely rely on a job evaluation system. Id. Moreover, because the job evaluation system allowed for wide salary ranges even within the same pay grade, this showed that “an employee’s categorization into a pay grade does not pinpoint that employee’s exact salary and that multiple employees within the same pay grade may have and earn varying salaries.” Id. at *14. 171 Heatherly, 778 F. App’x at 692. 172 Id. at 693.
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