40 | Developments in Equal Pay Litigation ©2024 Seyfarth Shaw LLP arguably different test for determining proper comparators, i.e., the “substantially similar” standard as opposed to the “equal work” standard that appears in the federal EPA. Other California courts have also granted class certification to equal pay plaintiffs litigating under California’s revised equal pay statute, although not necessarily basing their opinions on any new features of that law. Recently, in Rasmussen v. The Walt Disney Co.,303 the Superior Court of California for Los Angeles County certified a class of women employed by any Disney-related company in California within a certain selection of job codes or job families listed in the class definition. Although the court mentioned the California EPA’s “substantially similar” standard, it did not base its certification decision on that standard, instead holding that, “[w]hether comparison [sic] drawn by Plaintiffs meets the substantially similar requirement will be for the ultimate fact finder to resolve.”304 Moreover, resolution of the case would involve weighing the parties’ competing expert analyses, which the court reasoned, “would be common evidence applicable to the class.”305 The employer argued that its affirmative defenses would not be amenable to resolution by common expert evidence, as it would have the opportunity with respect to each member of the class to show that any alleged wage disparity was attributable to bona fide, genderneutral factors. But the court held this was a problem of manageability, rather than the issues of commonality and predominance with which class certification is concerned. This question could therefore be put off for another day: “While the Court will further address the manageability issue later, the predominance of commonality factor stands as no impediment to class certification of the EPA claims.”306 Notably, the court denied class certification under California’s state-law analogue to Title VII, holding that plaintiffs’ disparate treatment and disparate impact theories would require them to establish that a single policy or practice caused the alleged discrimination, which was not amenable to the same forms of common proof as their EPA claim: “in order to demonstrate commonality for the FEHA claims, it is not enough for Plaintiffs to show they disproportionately are paid less than men like under the EPA claims. Instead, Plaintiffs must show that the reason behind that discrimination is the same for all class members, that is causation; in other words, to establish a prima facie case under the FEHA theory, Plaintiffs must not only establish that the neutral practice and the adverse impact is amenable to common proof, but also that the disparity was caused from the specified practice.”307 As with the Ellis case, plaintiffs attempted to do so by pointing to an alleged common policy of relying on prior salary (or salary expectations) to set starting pay, which plaintiffs argued worked to the detriment of already wage-disadvantaged or otherwise undercompensated women. But plaintiffs hoped to rely on statistics to make this case for them, which the court held they could not do: “by using a statistical analysis as primary evidence of disparate impact, Plaintiffs' argument essentially relies on bootstrapping; that is, the impact provides the common thread as to the reason for the discrimination.”308 Accordingly, class certification was denied with respect to those claims. Of course, the class certification analysis has long been a part of wage discrimination cases brought under Title VII and its state law analogues. For example, in Abbananto v. County of Nassau,309 the District Court for the Eastern District of New York certified a class pursuing sex-based wage discrimination claims, even though the class was comprised of both women and men. In that case, male and female Police Communications Operators (“PCOs”) and Police Communications Operators Supervisors (“PCOSs”) alleged that their predominantly female workforce was paid less than the predominantly male Fire Communication Technicians (“FCTs”) and Fire Communications Technicians Supervisors (“FCTSs”), despite performing nearly identical work.310 The court found that common questions bound the class together, even though the class was made up of both male and female PCOs and PCOSs.311 The court 303 Rasmussen v. The Walt Disney Co., No. 19STCV10974, 2024 WL 454593 (Cal. Super. Ct. Jan. 30, 2024). 304 Id. at *4. 305 Id. 306 Id. at *5. 307 Id. 308 Id. at *6. 309 Abbananto v. Cnty. of Nassau, No. 19-cv-1102(GRB)(JMW), 2022 WL 326982 (E.D.N.Y. Feb. 3, 2022). 310 Id. at *1. 311 Id. at *6.
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