©2024 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 43 C. Disproving Discrimination: Employers’ Affirmative Defenses Under the burden-shifting framework applicable to the federal EPA, if a plaintiff successfully establishes a prima facie case, the burden shifts to the employer to establish one of the four statutory affirmative defenses, i.e., that the pay disparity is justified by: (1) a seniority system; (2) a merit system; (3) a pay system based on quantity or quality of output; or (4) a disparity based on any other factor other than sex.331 1. Proving A Factor Other Than Sex Under the federal EPA, the most common factor relied upon to justify a pay disparity is the catchall “factor other than sex” defense. Employers often point to factors such as levels of education, training, or other qualifications, productive output or performance, and other individually specific differences as factors that justify pay disparities. The defense is intentionally broad, and so the factors that employers raise under the framework of this defense tend to be quite broad and varied as well. Employers often attempt to justify pay disparities by pointing to their compensation systems, arguing that pay disparities are the result of where employees stand within the compensation hierarchy. For example, in Borovicka v. United States,332 a female attorney in the Federal Deposit Insurance Corporation’s legal division alleged she was discriminated against when her employer set her base salary lower than that of a male colleague.333 The court concluded that the employe had adequately justified the salary differential because the initial and final salary offers made to plaintiff and her alleged comparator “were consistent with the FDIC's Pay Administration Program and implementing Guide to Pay Setting, as well as the agency's Standard Operating Procedures (SOP) for Pay Setting Procedures for Corporate Graded (CG) Positions (SOP Pay Setting Procedures).”334 Those guidelines generally recommended setting new employee’s salaries at the minimum end of a designated range, but allowed for some discretionary upward adjustments to account for relevant experience. The evidence established that these procedures were followed. Both plaintiff and her comparator were initially offered salaries at the low end of the advertised pay range and then given an opportunity to provide documents justifying a higher starting salary.335 The evidence showed that plaintiff’s pay was set due to a list of well-documented genderneutral factors, including guidance from Human Resources personnel, plaintiff’s previous pay rate, and her relative lack of government experience and experience in federal sector labor and employment law.336 The court concluded that the employer “met its burden of amply demonstrating [plaintiff’s] starting base salary was decisioned on properly asserted and contemporaneously documented gender-neutral considerations.”337 Similarly, in Niekamp v. State of Missouri,338 The court found in favor of the employer because plaintiff’s pay was set by the state’s Office of Administration’s Uniform Classification and Pay System. That system 331 29 U.S.C. § 206(d)(1). 332 Borovicka v. United States, 168 Fed. Cl. 534 (Fed. Cl. 2023). 333 Id.at 543. Although the employer argued that plaintiff had failed to establish a prima facie case because she could not identify adequate comparators who were paid more than her, the court ignored those arguments because the employer had ignored them in its opening brief and had moved for summary judgment only with respect to its affirmative defenses. Accordingly, the only issue in dispute was whether the employer had met its burden to establish that the alleged pay disparity was due to a factor other than sex. 334 Id. at 544. 335 Id. 336 Id. at 545. 337 Id. at 546. 338 Niekamp v. State of Mo., No. 20-cv-04075-WJE, 2022 WL 4543207 (W.D. Mo. Sept. 28, 2022). In that case, a female investigator in the state’s prosecution unit alleged an EPA violation due to the fact that she was paid less than her male predecessor in the same role. Although her claim was based on Title VII, the court applied the principles of the EPA to resolve her claim: “A gender-based discrimination claim under Title VII, 42 U.S.C. §§ 2000e-2(a)(1) . . . is governed by the standards of the Equal Pay Act, 29 U.S.C. § 206(d).” Id. at *4.
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