©2024 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 47 provided no basis for the wage differential.’”370 Because the employer had presented evidence of objective and legitimate factors other than sex justifying the pay differential, it had met its burden to establish a “factor other than sex” defense. Plaintiff attempted to establish pretext, arguing that the incoming Athletic Director’s education and work experience were not relevant to the position. But the court held that her opinion was irrelevant because it was clear that her employer had, in fact, relied upon those factors in setting starting salaries: “it is immaterial whether [plaintiff] agrees with the Defendants’ subjective business decision to consider [incoming Athletic Director’s] Ph.D. and work experience in setting his salary. No evidence rebuts ‘the fact’ that they considered [his] higher degree and greater relevant work experience than [plaintiff’s].”371 Similarly, in Nazinitsky v. Integris Baptist Medical Center, Inc.,372 the court found that the employer’s practice of paying physicians based on the market value range of their medical specialty was a legitimate factor other than sex.373 Although that alone did not account for the entire salary difference—because each physician is compensated within a range associated with their medical specialty—that, coupled with the physicians’ different levels of experience, added up to a bona fide factor other than sex: “[plaintiff’s] specialty placed her in a lower compensation range than her male comparators—creating a wage disparity—and her lack of experience increased that disparity even further.”374 Legitimate economic concerns can even include an employer’s concern about internal pay equity. In Korty v. Indiana University Health, Inc.,375 the court held that an employer’s own attempts at promoting internal pay equity could be a “factor other than sex” defense. In that case, a specialist medical staff quality and peer review nurse at a statewide healthcare organization alleged pay discrimination when her employer hired her replacement at a higher salary.376 The court first held that it was entirely reasonable for the employer to have considered the replacement’s prior salary in its salary offer.377 The court also held the employer was justified in raising the replacement’s salary due to its consideration of internal equity concerns. Among other things, the employer had reviewed the pay rates of ten other clinical care nurse quality coordinators in different regions of the state, finding that all were female and most had been paid more than plaintiff.378 The court therefore concluded that “[t]here is no doubt at all that internal equity 370 Id. at *5 (quoting Steger v. Gen. Elec. Co., 318 F.3d 1066, 1078 (11th Cir. 2003)). 371 Id. at *7. 372 Nazinitsky v. Integris Baptist Med. Ctr., Inc., No. 19-cv-043-R, 2020 WL 1957914 (W.D. Okla. Apr. 23, 2020). The court assumed without deciding that she had met her burden to establish that she performed work that was substantially equal to her alleged comparators. Id. at *4. It then considered the employer’s affirmative defense that her salary had been based on two factors other than sex: (1) a bona fide, gender-neutral pay classification system based on marketplace value; and (2) employee experience. Id. 373 Id. 374 Id. at *5. On appeal, the Tenth Circuit found that the market compensation for the specialists plaintiff was comparing herself to was higher than that provided for her specialty. According to the court’s calculations, that difference alone accounted for roughly 40% of the alleged wage differential. Nazinitsky v. Integris Baptist Med. Ctr., Inc., 852 F. App’x 365, 368 (10th Cir. 2021).The court then concluded that the remaining part of the differential was explained by differences in levels of work experience: “Common sense tells us as much here. [Plaintiff] was a first-year physician and is comparing herself to physicians with at least seven years’ more experience.” Id. See also Martin v. Delta Cnty. Mem’l Hosp. Dist., No. 19-cv-1339-STV, 2021 WL 6112878, at *12 (D. Colo. Dec. 23, 2021) (holding that a hospital successfully argued it had to pay a male physician a higher salary due to the more difficult market conditions at the time he was hired: “Based upon the uncontradicted evidence that [comparator’s] pay was based upon market conditions and not sex, the Court concludes that no rational jury could find that the pay differential between [comparator] and [plaintiff] were based upon sex.”); Barnett v. Roanoke Cnty. Sch. Bd., No. 7:20-cv-663, 2021 WL 5611317, at *8 (W.D. Va. Nov. 30, 2021) (holding that employer adequately justified pay disparity on the basis of the “sense of urgency” that surrounded plaintiff’s comparator teacher’s hiring, including the “late timing of the vacancy and the impending start of the school year,” and that the only other finalist for the position withdrew from consideration). 375 Korty v. Ind. Univ. Health, Inc., No. 4:21-cv-33-PPS, 2022 WL 17830485, at *4 (N.D. Ind. Dec. 21, 2022). 376 Her replacement was chosen from within the company, and he was in a position that paid more than plaintiff’s position. The employer wanted to hire the replacement, however, and so it subjected his starting salary to a number of reviews, including an internal equity review, to see what it could offer as a starting salary based on market range, internal equity, and the replacement’s knowledge, skills and abilities. Id. at *2. The replacement negotiated for an even higher salary, which the employer agreed to. The employer documented its reasons for offering the higher salary to the replacement, noting that he had obtained a number of pay raises in his prior position and was therefore starting at a higher rate. Id. at *3. 377 Id. at *4. 378 Id. at *6.
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