44 | Developments in Equal Pay Litigation ©2024 Seyfarth Shaw LLP established salaries for each position and set initial pay rates based on qualifications and permanent position-related factors, such as working conditions or physical location of work, and/or recruitment or staffing needs.339 Although plaintiff was paid less than three other male colleagues, those employees were at a different pay grade according to the salary system: “Defendants have adequately proved that [plaintiff] was at a lower pay grade than those three male colleagues because of her prior work experience and as the result of working in different divisions.”340 And in Akerson v. Pritzker,341 the Bureau of the Census posted a recruiting bulletin that sought candidates to be Partnership Specialists at four salary grade levels. The bulletin specified that candidates must submit separate applications for each grade level.342 The plaintiff in that case applied only for a position at the second-lowest pay grade. Her chosen comparator applied for the same position at a higher pay grade. He was paid more even though his position involved substantially the same, if not identical, responsibilities.343 The court held that “Defendant's employment practice of hiring and compensating individuals based on the job grade he or she applies for constitutes a legitimate factor independent of sex.”344 However, in Kent-Friedman v. New York State Insurance Fund,345 a female Supervising Attorney for a state agency, who was temporarily appointed to an Acting Assistant Director position, alleged she was paid less than the person who was eventually hired into the same role as a permanent Assistant Director, in violation of the EPA. The employer argued that the pay disparity was justified by the fact that the agency did not have the discretion or authority under state law to increase plaintiff’s salary, because she officially still held the title of Supervising Attorney.346 The court rejected this argument outright, noting that the employer could not hope to rely on state law restrictions to justify a pay disparity that was illegal under federal law: “Even if [agency] did not have discretion under state law to increase [plaintiff’s] salary for acting as Assistant DCI Director while she remained in a competitive class job, federal law forbids [agency] from paying women employees less than men on the basis of mere job titles.”347 The employer argued that it had applied the state law in good faith and in a gender neutral manner, noting that several employees, both male and female, had served in various roles in acting capacities without receiving any increase in pay or official change to their civil service title.348 The court rejected this argument as well, holding that it “amounts to a claim that two prima facie EPA violations cancel each other out if they are inadvertent and are committed respectively against a woman and a man.”349 Although the court agreed that the uniform application of gender-neutral personnel policies can constitute an acceptable factor other than sex, it can only do so if it evidences that a pay differential is the result of some other non-sex factor. In other words, the uniform application of a policy must be a mechanism through which some other gender-neutral factor operates, e.g., a policy that pays more for certain types of experience or that treats employees differently based on date of hire. The court pointed out the absurdity of the contrary conclusion, reasoning: “Indeed, if the uniform application of a facially neutral policy could be an end in itself for EPA purposes, a policy whose inadvertent result is less pay for women 339 Id. Plaintiff argued that she should have been paid more than her predecessor because she had more transferable experience from working in the state’s Attorney General’s Office. But the court found that her experience did not make her eligible for withingrade salary advancement per the operation of the salary system, and held that the court would not sit as a “super-personnel department that reexamines an entity’s business decisions.” Id (quoting Taylor v. White, 321 F.3d 710, 719 (8th Cir. 2003)). 340 Id. 341 Akerson v. Pritzker, No. 12-cv-10240-PBS, 2021 WL 2295522 (D. Mass. June 4, 2021). 342 Id. at *1. 343 Id. at *9. 344 Id. at *10. The plaintiff had not asserted that she was denied the opportunity to apply for her position at a higher grade level, and she plainly had not. Moreover, the employer was able to show that there was at least one female hired into the same position at the same pay grade as plaintiff’s chosen comparator. Id. at *9. 345 Kent-Friedman v. N.Y. State Ins. Fund, No. 18-cv-4422(VM), 2023 WL 6292693 (S.D.N.Y. Sept. 27, 2023). 346 Id. at *12. 347 Id. at *13. 348 Id. at *16. 349 Id.
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