30 | Developments in Equal Pay Litigation ©2024 Seyfarth Shaw LLP EPA vs. Title VII Claims. Finally, plaintiffs who pursue their claims under both the EPA and Title VII— and the employers who defend against those claims—must be cognizant of the different standards applied to determine proper comparators under those statutes. Many courts have held that the EPA and Title VII pay discrimination claims should often be decided the same way.228 However, the Second Circuit recently clarified an important substantive difference between these statutes. In Lenzi v. Systemax, Inc.,229 the plaintiff had alleged violations of the EPA and Title VII related to the setting of her compensation. The district court dismissed her claims, holding that her Title VII claims, like claims brought under the EPA, required her to show “positions held by her purported male comparators [were] substantially equal to her position.”230 Plaintiff could not make this showing because she was the only employee who held her job title and duties. The Second Circuit clarified that “a Title VII plaintiff alleging a discriminatory compensation practice need not establish that she performed equal work for unequal pay,” as is required by the EPA.231 “[A]ll Title VII requires a plaintiff to prove is that her employer ‘discriminate[d] against [her] with respect to [her] compensation . . . because of [her] . . . sex.”232 Discriminatory pay claims can be brought successfully under Title VII even if the plaintiff cannot show a purported comparator of the opposite sex earned more.233 But these differences in law are not always enough to save a plaintiff’s prima facie case; the standard under Title VII is not toothless. For example, in Calicchio v. Oasis Outsourcing Group Holdings, L.P.,234 a Chief Human Resources Officer alleged she was paid less than males who worked in other roles that reported directly to the CEO: the Executive Vice President and Chief Financial Officer, the Chief Operating Officer, the Chief Sales Officer, and the Chief Information Officer. The court held that the plaintiff could not state a prima facie case of wage discrimination under the EPA based on those comparators: “While Plaintiff and each of the comparators are high-level executives, the record shows they undertook distinct primary tasks and maintained differing portfolios of responsibility.”235 The court recognized that “Plaintiff's failure to establish a prima facie case under the EPA reflects a persistent problem faced by members of protected classes serving in high-level executive positions.”236 The court then analyzed plaintiff’s claim of gender discrimination under Title VII, noting that “[i]t is true that the burden of showing the similarity of work performed by a female plaintiff and a male comparator is ‘more relaxed’ under Title VII than under the EPA.”237 However, under Title VII, plaintiff still had to show that she and her proffered comparators were similarly situated in all material respects. The court held that she was not “similarly situated” under Title VII’s standard because she did not share the same employment history; her comparators had worked for the employer decades longer than plaintiff, “a difference in employment history that alone prevents them from being ‘similarly situated’ to Plaintiff.”238 228 See, e.g., Gallaway v. Rand Corp., No. 2:18-cv-01379-RJC, 2020 WL 1984312, at *14 (W.D. Pa. Apr. 27, 2020) (holding that the analysis regarding the third and fourth elements of a Title VII pay discrimination claim were “aided in large part by the reasoning as to the Equal Pay Act claim, supra. As to the third prong, there is a genuine dispute of material fact that Plaintiff suffered an adverse action when she was paid less than her male comparators who performed similar duties. . . . As to the fourth prong, there is sufficient record evidence to allow a reasonable factfinder to conclude that Plaintiff's performance of the same duties under the same level of supervision gives rise to an inference of unlawful discrimination”). 229 Lenzi v. Systemax, Inc., 944 F.3d 97 (2d Cir. 2019). 230 Id. at 108 (internal citations omitted). 231 Id. at 110. 232 Id. (quoting 42 U.S.C. § 2000e-2(a)(1)). The Second Circuit acknowledged that its earlier opinions may have confused the district court; it previously held that “[a] claim of unequal pay for equal work under Title VII . . . is generally analyzed under the same standards used in an EPA claim.” Id. at 109 (quoting Tomka v. Seiler Corp., 66 F.3d 1295, 1312 (2d Cir. 1995)). 233 See also Balchan v. City Sch. Dist. of New Rochelle, No. 21-cv-04798 (PMH), 2023 WL 4684653 (S.D.N.Y. July 21, 2023) (finding that plaintiff had pled enough facts to establish a prima facie case under Title VII, but not under the EPA because “in the Title VII context and ‘at the motion to dismiss stage,’ evidence of similarly situated comparators ‘is not necessary,’ while her “Equal Pay Act claim fails because she does not allege any facts about actual job duties of the comparators discussed”; similarly, her New York State Human Rights Law claim survived because the 2019 amendment to that law aligned it with the standard under Title VII) (citations omitted). 234 Calicchio v. Oasis Outsourcing Group Holdings, L.P., 584 F. Supp. 3d 1215 (S.D. Fla. 2021). 235 Id. at 1234. Among other things, the court held that the duties and skills of a Chief Human Resources Officer differed materially and were narrower than her comparators’ positions. 236 Id. at 1238. 237 Id. at 1245 (quoting Rollins v. Ala. Comm. Coll. Sys., 814 F. Supp. 2d 1250, 1267 (M.D. Ala. 2011)). 238 Id. (quoting Lewis v. City of Union City, Ga., 918 F.3d 1213, 1228 (11th Cir. 2019)).
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