62 | Developments in Equal Pay Litigation ©2024 Seyfarth Shaw LLP process corrupted the inputs fed into the system, including about her actual duties and performance.505 The court found those arguments were based on nothing more than speculation: “Because plaintiff acknowledges that the STRL pay system is facially gender-neutral when functioning as intended and with good data, . . . she has conceded the viability of defendant's affirmative defense.”506 Quality and Quantity of production. The “quality and quantity of production” defense is especially important for sales positions, since sales employees are often compensated on commission. For example, in Spurbeck v. Wyndham Worldwide,507 a timeshare sales representative alleged male sales representatives were paid more for the same work. The sales representative position was subject to performance metrics that tracked the eligible dollar value of the vacation ownership (timeshare) interest sold divided by the number of tours that the sales representative saw in a month.508 Plaintiff argued that her employer gave male employees more opportunities to sell and more perks to help them sell.509 The court found no credible evidence to suggest that male employees were treated more favorably with respect to their ability or opportunity to earn more under the same commission schedule. But more importantly, the court held that “[e]ven if Plaintiff had or was able to show evidence of a pay disparity, she would need to contend with Defendants’ evidence that indicates that Sales Representatives were paid the same commission rate.”510 The court held that, because the employer used the same commission schedule to pay all sales representatives, it had adequately shown that its commission-based compensation plan was a system which measures earnings by quantity or quality of production.511 But in Bandokoudis v. Entercom Kansas City, LLC,512 the court rejected the “quality and quantity of production” defense due to the lack of clear evidence as to how it was applied consistently to all employees. In that case, a woman working as on-air talent for a radio station alleged she was paid less than another morning radio host who was male.513 The employer argued that it pays its on-air talent according to a system that measures the quantity or quality of production; the male host’s ratings and revenue were higher and he was more successful in securing advertisers.514 But it had not introduced any evidence to establish that those were the criteria used to determine plaintiff’s comparator’s pay. This was fatal to the “quantity and quality of production defense: “Without evidence of a system applied equally to Plaintiff and [comparator], Defendant fails to meet its burden with respect to this affirmative defense.”515 5. Pretext Even if an employer succeeds in establishing one of the enumerated affirmative defenses, a plaintiff may still succeed on an equal pay claim if he or she can show that the proffered reason for the wage disparity 505 Id. at 177. 506 Id. (internal citations omitted). 507 Spurbeck v. Wyndham Worldwide, No. 2:20-cv-00346-RFB-NJK, 2022 WL 717925 (D. Nev. Mar. 9, 2022). 508 Id. at *2. Failure to meet minimum sales quotas could subject an employee to immediate termination. The plaintiff was eventually terminated for failing to meet sales quotas. Id. 509 Id. at *7. 510 Id. at *9. 511 Id. See also Cuthbertson v. First Star Logistics, LLC, 638 F. Supp. 3d 581, 594 (W.D.N.C. 2022) (granting summary judgment for employer relying on “quantity and quality of production defense,” where “Plaintiff concedes commissions were determined based on the profitability of agents recruited, and she has not presented any evidence to contradict Defendant's commission calculations based on quality of work recruiting profitable agents,” and “Defendant's unrebutted evidence demonstrates that any difference in commission payments for Plaintiff and her male counterparts was due to individual performance based on both quantity and quality of those recruited”). 512 Bandokoudis v. Entercom Kansas City, LLC, No. 2:20-cv-02155-EFM-GEB, 2022 WL 1460008 (D. Kan. May 9, 2022). 513 The court first held that the plaintiff had adequately established that the two radio hosts’ positions were comparable: “it is undisputed that Plaintiff and [comparator] were both “on-air talent,” . . . during the same morning daypart. . . . Further, Plaintiff has provided sworn testimony that the duties and responsibilities of Plaintiff's and [comparator’s] shows were the same, that the skills and effort required to hosts the shows were the same, that the supervision of the shows was essentially the same, and that the conditions of Plaintiff's and [comparator’s] employment were the same.” Id. at *4. 514 Id. at *4, 7. But the court held that, rather than evidence of any real system, the employer had merely cited “its Operations Manager's amorphous explanation of what he considers in determining salaries.” Id. at *7. 515 Id. (emphasis in original).
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