58 | Developments in Equal Pay Litigation ©2024 Seyfarth Shaw LLP Employers should expect equal pay plaintiffs to continue to challenge factors other than sex that they believe are tainted by discrimination. Those arguments are sometimes successful. For example, in Spiewak v. Wyndham Destinations, Inc.,467 a timeshare Sales Manager alleged she was paid less than male comparators in the same position in violation of New Jersey’s EPA and Law Against Discrimination (“NJLAD”), which is analyzed similarly to a Title VII claim. The employer argued that plaintiff’s lower compensation was the result of the straightforward application of its Compensation Plan, which applies to all Sales Managers.468 But plaintiff argued that the employer had discriminated against plaintiff in terms of the factors and circumstances that impacted her ability to perform under the Compensation Plan: “Plaintiff concedes that she was paid pursuant to the same Compensation Plan, however, she contends that Defendant impacted her commission compensation by consistently assigning her less, and less seasoned, Sales Representatives.”469 Among other things, plaintiff was able to show that she was consistently assigned fewer Sales Representatives than her male counterparts, and with a greater proportion of them assigned to a less-lucrative market.470 She was also able to marshal evidence to rebut the employer’s attempts to show that all such assignments were made in a gender-neutral manner. On the NJLAD claim, the court denied summary judgment to the employer, concluding: “Plaintiff has identified facts and affirmative evidence to contradict or show inconsistencies with the proffered reasons and show that Defendant did not act for non-discriminatory reasons.”471 Similarly in Dixon v. Edward D. Jones & Co., L.P.,472 a female financial advisor alleged she was discriminated against in pay due to the discriminatory operation of the employer’s asset and office sharing plan. Under that plan, senior financial advisors can transfer assets to more junior advisors to increase their portfolio capacity to manage more lucrative assets.473 More junior financial advisors depend on the asset transfers from more senior advisors, so lack of access to those transfers in an advisor’s career can impair their income and advancement opportunities. The plaintiff alleged that those asset transfers disproportionately went to white male financial advisors with equal or less experience. The employer sought to dismiss the complaint, alleging it was defective on its face because it did not allege that the employer paid different rates to male and female advisors and/or because the facts, as alleged, showed that the employer paid its employees under a system that measures the quality and quantity of production, i.e., an affirmative defense under the EPA.474 The court agreed with plaintiff that this was a mischaracterization of the complaint, which begged the central question of the case: “whether assets under management’ are, in fact, an ‘objectively verifiable criterion’ on which to base compensation, . . . or those assets are allocated in a way that improperly favors male employees—in favor of Defendants.“475 prior salary, were recognized as legitimate justifications by the Sixth Circuit), rev’d, 11 F.4th 498 (6th Cir. 2021); Grigsby v. AKAL Security, Inc., No. 5:17-cv-6048-DGK, 2018 WL 3078769, at *7 (W.D. Mo. June 21, 2018) (holding that salary negotiations, without more, established an employer’s affirmative defense, concluding: “there are no facts which would allow a fact finder to find that [employer’s] decision to pay [plaintiff] more than [comparator] in the Director of Airport Operations position was based on gender because his salary was set through negotiations and he was the best available person for the job, necessitating a higher pay”); Smith v. Office of the Att’y Gen., State of Ala., No. 2:17-cv-00297-RAH, 2020 WL 4015622 (M.D. Ala. July 16, 2020) (finding that employer met its burden to establish that wage disparity was due to factor other than sex where the evidence showed that male comparators had “made it known that they had no interest in positions at the OAG if their overall compensation was not commensurate with what they were earning at the FBI”). 467 Spiewak v. Wyndham Destinations, Inc., No. 20-cv-13643 (KMW-EAP), 2023 WL 869309 (D.N.J. Jan. 26, 2023). 468 Id. at *8. 469 Id. at *9. 470 Id. 471 Id. at *10. The District Court for the Northern District of Illinois came to a similar conclusion in Douglas v. Alfasigma USA, Inc., No. 19-cv-2272, 2021 WL 2473790 (N.D. Ill. June 17, 2021). In that case, a pair of sales representatives alleged, among other things, that they were underpaid compared to their male colleagues. The employer argued that the complaint was self-defeating in that it acknowledged that the male comparators were given more favorable sales territories. “[Employer] argues that Plaintiffs have pled themselves out of court by alleging that [supervisor] gave them unfavorable territory compared to their male counterparts. . .. [Employer] basically reads the complaint as an admission that Plaintiffs were less productive than their male counterparts.” Id. at *10. But plaintiffs had alleged that taking away their sales opportunities was part of the discriminatory pattern they faced. The Court explained that “[t]aking away sales opportunities cannot defeat a sex discrimination claim when taking away sales opportunities was an act of sex discrimination.” Id. at *11. 472 Dixon v. Edward D. Jones & Co., L.P., No. 4:22-cv-00284-SEP, 2023 WL 2755266 (E.D. Mo. Mar. 31, 2023). 473 Id. at *1. 474 Id. at *3. 475 Id. at *4.
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