60 | Developments in Equal Pay Litigation ©2024 Seyfarth Shaw LLP evidence that the Budget Committee and the Dean determined faculty members' pay raises on the basis of a merit system, the University has raised a valid affirmative defense under the Equal Pay Act.”485 Proper documentation and consistent application of such systems are critical to establishing these defenses. Lack of either can prove fatal to such defenses. For example, in Toole v. Lakeshore Ear, Nose, and Throat Center, P.C.,486 an African American head and neck surgeon alleged she was paid less than her white male counterparts due to her gender and race. The employer attempted to argue that the alleged pay disparities were the result of its merit system and/or a system that measures earnings by quantity or quality of production. And, in fact, the court found that “[i]t is undisputed that the Executive Committee used an objective mathematical formula based on Payments from insurance, Medicare/Medicaid and patients to determine compensation.”487 But the court held that a reasonable jury could find that such a system did not meet the requirements of a merit defense because the“[employer’s] own admissions counter this affirmative defense.”488 The employer’s President testified that pay was not based on quality or merit because they were unaware of any appropriate metric to assess merit.489 Similarly, in Brunarski v. Miami University,490 the court held that a merit system that used vague criteria that were inconsistently applied could not justify a wage disparity.491 Given the lack of evidence that the university’s factors had been communicated to professors prior to their use, and that they deviated from the standard factors used for other raises, the court held that the university “must show that there was an actual legitimate business purpose of [employer] for its focus on these factors to the exclusion of other factors typically considered when awarding a merit raise under the standard factors.”492 However, in McCarty v. Purdue University,493 an employer justified a pay disparity by arguing that the plaintiff’s comparator had started at a higher salary because he had previously worked for the employer.494 That initial pay difference grew over time due to the employer’s merit ranking system.495 The court was persuaded by the fact that plaintiff’s poor performance was consistently documented and communicated to her: “It is clear that [comparator’s] salary was impacted by his successful experience during the nine 485 Id. at *16. In an earlier decision, the court also excluded plaintiff’s expert witness, a social science researcher, who sought to provide “social framework” testimony regarding the operation of stereotypes and bias that can lead to workplace discrimination against women. Mullenix v. Univ. of Tex. at Austin, No. 1:19-cv-1203-LY, 2021 WL 4304815, at *2 (W.D. Tex. Sept. 21, 2021). The court held, among other things, that there was simply too great an analytical gap between the general research the expert relied upon and the specific conclusions he was offering about the case. Id. at *6. 486 Toole v. Lakeshore Ear, Nose, and Throat Ctr., P.C., No. 21-cv-11850, 2023 WL 3794507 (E.D. Mich. June 2, 2023). 487 Id. at *12. 488 Id. 489 Id. 490 Brunarski v. Miami Univ., No. 1:16-cv-311, 2018 WL 618458 (S.D. Ohio Jan. 26, 2018). In that case, two female university professors alleged they were paid less than comparable men. Among other things, the university attempted to justify the pay disparity as the result of a merit-based system. Id. at *10. The employer argued that plaintiffs’ comparators received larger merit raises because of their involvement in study abroad programs and because of exceptional performance. Id. 491 The court held that the university had failed to establish this affirmative defense because, among other things, the standards for awarding so-called “super-merit” raises were vague and contradictory. Id. at *11. There was no evidence to show that the factors cited by the university had been used previously to award super-merit raises or any other type of raise. Id. Moreover, the court found that the university’s application of the factors ostensibly used to justify the super-merit raises were not “commensurate with satisfaction” of those factors. Id. 492 Id. at *12. Although the university had articulated a legitimate reason for those factors, “the same could be said for almost any individual factor it chose to now focus on that somehow relates to teaching, research, or service.” Id. 493 McCarty v. Purdue Univ., No. 4:19-cv-43 JD, 2021 WL 3912564 (N.D. Ind. Sept. 1, 2021). 494 Id. at *3. 495 If an employee ranked in the bottom 10%, they would not be given a merit increase that year. Plaintiff ranked in the bottom 10% each year but one, whereas her comparator never ranked in the bottom 10% and in fact was ranked in the top 25% multiple years. He therefore received a merit increase each year. Moreover, the facts showed that in the one year when plaintiff did not rank in the bottom 10%, she did receive a merit increase. But it was less, in percentage terms, than what her comparator received, due to their different performance rankings that year. Id.
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