©2024 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 41 held that Title VII applies not just to those discriminated against directly, but also to those who suffer the effects of discrimination directed at others: “Under Plaintiffs’ theory of this case, Defendant's challenged system applies to—and therefore aggrieves—all, rather than just female, PCOs and PCOSs, creating common questions sufficient to satisfy commonality.”312 Statistics often play a critical role in class or collective certification decisions. For example, in Ahad v. Board of Trustees of Southern Illinois University,313 the court initially conditionally certified a collective action of female faculty physicians, but later denied plaintiff’s request for class certification of the same claims under the Illinois Equal Pay Act, Title VII, and the Illinois Civil Rights Act.314 Plaintiff’s expert had shown that female physicians were paid less at a statistically significant level than similarly situated male physicians.315 But the court held that this statistical disparity, by itself, was not enough to warrant class treatment; plaintiff must establish the “glue” that can produce a common answer to the questions of whether and why compensation for female physicians is lower than male physicians.316 The court noted that plaintiff had “not presented any argument that objective factors considered by the Department Chairs or the Dean in determining compensation resulted in the pay disparity.”317 Plaintiff’s statistical evidence alone, “does not and cannot show whether a common cause existed regardless of the statistically significant showing of pay disparities based on gender.”318 Later in the case, the court decertified the collective action as well, holding that plaintiff had failed to identify a common policy that caused the alleged discrimination.319 A recent case, United Probation Officers Association v. City of New York,320 demonstrates the challenges putative class action plaintiffs face when attempting to bring such claims on a class basis, and the use 312 Id. But see Haggan v. Google, LLC, No. 518739/2022, 2023 WL 7130793, at *3 (N.Y. Sup. Ct. Oct. 26, 2023) (denying final approval of class action settlement that combined gender and race-based pay discrimination claims: “Here, the proposed class representatives . . . have failed to demonstrate that their gender discrimination claims are typical of the proposed class and/or how they can effectively represent proposed class members with whom they lack commonality, such as Black, LatinX, Native Americans or Alaskan male [employer] employees with potential racial-based discrimination claims”); Miller v. City of N.Y., No. 15-cv-7563, 2018 WL 2059841, at *4-5 (S.D.N.Y. May 1, 2018) (dismissing the claims of a class of over 2,000 female school crossing guards who alleged they were paid less than traffic enforcement agents due to the “stark differences in training, job requirements, and job responsibilities” between the two positions,” noting that (1) traffic enforcement agents undergo ten times more training than school crossing guards; (2) they are full-time employees who can be required to work nights, weekends, and overtime, whereas crossing guards are part-time employees who work no more than five hours per day; (3) they have greater responsibilities, including issuing summonses and testifying in court; and (4) they work at different, often busier intersections and sometimes at night); Bloise v. City of N.Y., 768 F. App’x 103, 138 (2d Cir. 2019) (upholding Miller, concluding: “the [school crossing guard] and [traffic enforcement agent] jobs are not substantially equivalent, as [traffic enforcement agents] must fulfill more requirements, undergo more training, perform all responsibilities, and labor under different and more hazardous working conditions”). 313 Ahad v. Bd. of Trs. of S. Ill. Univ., No. 3:15-cv-03308, 2017 WL 4330377 (C.D. Ill. Sept. 29, 2017). The court was satisfied that plaintiffs had met their minimal burden to obtain conditional certification at step one of the process because all faculty physicians performed the same job duties involving patient, teaching, and administrative functions. Id. at *4. 314 Ahad v. Bd. of Trs. of S. Ill. Univ., No. 15-cv-3308, 2018 WL 4350180 (C.D. Ill. Sept. 12, 2018). 315 Id. at *9. 316 Id. at *10. 317 Id. 318 Id. at *11 (emphasis in original). 319 Ahad v. Bd. of Trs. of S. Ill. Univ., No. 15-cv-3308, 2019 WL 1433753 (C.D. Ill. Mar. 29, 2019). The plaintiff was allowed to proceed to trial on her individual claim; the court later held, among other things, that “triable issues of fact exist regarding whether [plaintiff’s] and her male comparators' jobs had a ‘common core’ of tasks,” and that the employer had not carried its burden to establish that its merit-based system was a sex-neutral reason for the disparity in pay. Ahad v. Bd. of Trs. of S. Ill. Univ., No. 15-cv3308, 2021 WL 6118239, at *4, 6 (C.D. Ill. Dec. 23, 2021). See also Knox v. John Varvatos Enters., Inc., 282 F. Supp. 3d 644 (S.D.N.Y. 2017). In Knox, the District Court for the Southern District of New York conditionally certified a collective action of female sales associates. The defendant, a retailer with 22 stores throughout the United States, was alleged to have discriminated against female sales associates by providing male sales associates—and only male sales associates—a $12,000 annual allowance to purchase the Company’s branded clothing to wear to work. Id. at 651. The district court held that the plaintiffs had “easily made” their modest factual showing establishing that they and the putative collective action of women sales associates are similarly situated for purposes of conditional certification. Id. at 654. Critical to the court’s analysis was the fact that plaintiffs were able to point to a written dress policy that was applied across all 22 retail locations, which stated that all male employees received a clothing allowance. Id. at 654-55. A trial was held on plaintiffs’ claims in early 2020. On January 12, 2021, the Court affirmed the verdict of the jury in favor of plaintiffs and refused to grant defendant judgment as a matter of law or a new trial on critical issues of liability, but did allow for a new trial on issues of compensatory and punitive damages. Knox v. John Varvatos Enters., Inc., No. 17-cv-772 (GWG), 2021 WL 95914 (S.D.N.Y. Jan. 12, 2021). 320 United Probation Officers Ass’n v. City of N.Y., No. 21-cv-0218 (RA), 2022 WL 875864 (S.D.N.Y. Mar. 24, 2022).
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