©2024 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 61 years before [plaintiff] began employment. The Court finds this to be a reasonable differential that is not based on sex and does not believe a reasonable jury could conclude otherwise.”496 Seniority Systems. Although not as often relied upon as a defense, seniority systems are treated similarly to merit systems. In Duke v. City College of San Francisco,497 an administrator at a community college alleged he was paid less than a female counterpart who performed the same work. However, the court held that his chosen comparator had been an employee with the college for over three years before being hired into the same position as plaintiff. The court concluded that “Defendant has submitted undisputed evidence showing that [comparator] had already been a[n] . . . employee for three years before she was hired to perform the same role as plaintiff . . .. Thus, within the [employer] system, [comparator] had seniority, and it was permissible for her to receive a higher salary than plaintiff.”498 As with a merit system, consistency and proper documentation are key. For example, in Donovan v. Nappi Distributors,499 a female Wine Purchasing Manager for a beverage distributor alleged she was paid less than her male predecessor in the same position. The employer argued that her predecessor’s higher pay was justified by his significantly greater experience and seniority than plaintiff at the company.500 The court held that the employer had failed to establish its affirmative defense by the standard applicable to EPA affirmative defenses, i.e., by a preponderance of the evidence. While it was undisputed that plaintiff’s predecessor had significantly more experience in the industry, the employer’s failure to document the impact of its “seniority system” doomed its defense: “while [employer] claims seniority influences the different compensation, the record is devoid of any documentation supporting a ‘seniority system’ and its corresponding salary calculation.”501 Accordingly, the court held that there was sufficient dispute of material fact for a reasonable jury to find that seniority was merely a pretext for its compensation decisions.502 As with the factor other than sex defense, plaintiffs have sometimes challenged these defenses on the grounds that they are inherently discriminatory. For example, in Spellers v. United States,503 an employer argued that plaintiff’s and her comparators’ difference in pay was due to the government’s highly structured and regulated merit system and therefore could not be due to gender.504 Plaintiff attempted to contest this, arguing that the merit system could not function properly because a discriminatory review 496 Id. at *5. See also Summy-Long v. Pa. State Univ., 715 F. App’x 179, 183 (3d Cir.). In that case, the Third Circuit affirmed dismissal of a female physician’s wage claim because, among other things, numerous items in the record “reflected a lack of academic performance in comparison to her colleagues.” Id. Among other things, she had been urged to increase publications and to obtain external funding to support her research. She also “failed to apply to renew her National Institute of Health grant even after being reminded repeatedly for three years by her superior.” Id. The court held that this evidence established that “[t]he difference in [her] salary compared to her male coworkers resulted from, among other things, her lack of publications and failure to obtain external funding.” Id. 497 Duke v. City Coll. of S.F., No. 19-cv-6327-PJH, 2021 WL 1966599 (N.D. Cal. May 17, 2021). 498 Id. at *8. 499 Donovan v. Nappi Distribs., No. 2:21-cv-70-JAW, 2023 WL 7702137 (D. Me. Nov. 15, 2023). 500 Id. at *95. 501 Id. at *96. 502 Id. The same court came to a similar conclusion in another case brought against the same employer. In Tourangeau v. Nappi Distributors, 648 F. Supp. 3d 133 (D. Me. 2022), a female wine sales representative alleged she was underpaid compared to her male peers because she was paid at a 2% commission rate while they were paid at a 3% rate. At the time she was hired, her employer was in the process of reducing the pay scale of some of its sales representatives to better align with industry norms and to lower payroll costs. Id. at 149-50. The new commission rates applied to new hires; more senior sales representatives were “grandfathered in,” so their rate structure would not be impacted. The plaintiff was both the first female wine sales representative and the first wine sales representative to be hired at the 2% rate. Id. at 208. The court held that a jury could reasonably conclude that the employer’s decision to offer a lower rate to plaintiff was due to discrimination, particularly because it had not introduced evidence of the more senior male representatives’ professional experience. Without such evidence, the Court was “unable to determine whether seniority justified this initial pay discrepancy.” Id. 503 Spellers v. U.S., 157 Fed. Cl. 171 (Ct. Fed. Cl. 2021). In that case, a female computer scientist sued the Department of the Navy, alleging she was paid less than male co-workers for the same work. The plaintiff had been paid at the GS-11 equivalent pay band, while her comparators had been paid at a GS-13 level. Id. at 173. When plaintiff and her peers were transitioned to a new personnel management system, her pay was flagged by the system as too low. Id. She was given a large raise to help her catch up with her peers. Thereafter, she received modest pay increases, but still remained at the GS-12 level for several years. Id. at 174. 504 The employer pointed to its sophisticated and gender-neutral merit-based system, called the NAVAIR Science and Technology Reinvention (“STRL”) Personnel Management Demonstration Project.
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