©2024 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 71 It can also be important that, unlike the EPA, there is no “establishment” requirement for plaintiffs proceeding under Title VII. In Lindsley v. TRT Holdings,585 the Fifth Circuit reversed and remanded a decision holding that Directors from other locations of the same hotel chain were not proper comparators because they were not part of the same “establishment” where plaintiff worked.586 The Fifth Circuit held that, although the case did not present the “unusual circumstances” that might warrant departure from the usual rule regarding an “establishment” under the EPA, that analysis does not apply under Title VII or to plaintiff’s state law claims. The Fifth Circuit faulted the district court for failing to address that issue in the context of those statutory schemes: “Those statutes contain no ‘establishment’ requirement. Yet the district court did not address whether [plaintiff] established a prima facie case under Title VII and the Texas Labor Code based on male food and beverage directors at different [employer] locations.”587 Similarly, in Black v. Barrett Business Services, Inc.,588 the District Court for the District of Idaho held that the plaintiff did not work in the same establishment as all but one of her comparators because the other managers worked at another branch.589 In the Ninth Circuit, the “establishment” question depends not just on the geographic distance between offices, but also on “the nature of the services provided and the degree of central administration, such as budgeting, hiring, and day-to-day management.”590 The court found that there was no reason to combine the branches in this case, because, among other things, the branches were managed independently, had their own sales and profitability goals, each serviced and solicited distinct clients, and there was never any significant overlap in the daily operations.591 Accordingly, for purposes of the EPA—but not Title VII—the plaintiff was limited to just one comparator. 3. Identifying The “Employer” Under The EPA One issue that is frequently litigated in EPA lawsuits is whether one or more entities can be considered the “employer” of the plaintiff. Often that determination depends on what test is used to determine joint employment. Under Title VII, subject to some enumerated exceptions, an “employer” means “a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person.”592 The EPA uses the broader definition found in the FLSA, which defines an “employer” as “any person acting directly or indirectly in the interest of an employer in relation to an employee . . . .”593 An “employee” is defined as “any individual employed by an employer,”594 and the term “employ” means “to suffer or permit to work.”595 Together, those definitions have been called “the broadest definition . . . ever included in any one act.”596 Courts interpreting the FLSA’s definition have focused on the “economic realities” of the purported employment relationship. The “economic realities” inquiry, in turn, focuses on a number of factors related to control over the employee, including whether the alleged employer: (1) had the power to hire and fire 585 Lindsley v. TRT Holdings, Inc., 984 F.3d 460, 464 (5th Cir. 2021). In that case, a hotel Food and Beverage Director alleged she was paid less than other Food and Beverage Directors who worked at different outposts of the same hotel chain in different cities in Texas. 586 See Lindsley v. TRT Holdings, No. 3:17-cv-2942-X, 2019 WL 6467256, at *1 (N.D. Tex. Dec. 2, 2019). The Fifth Circuit held that the plaintiff had “put forth a prima facie case of sex discrimination,” and stated “[i]f there is a good explanation for that disparity, [employer] is required to put one forth if it wishes to prevail in this litigation. [Employer] failed to do so. Yet the district court granted summary judgment to [employer] anyway.” Lindsley, 984 F.3d at 464. The court pointed to the fact that plaintiff had established that she was paid less than her predecessors in the same position, and “[n]o more is needed to establish a prima facie case.” Id. at 467. 587 Id. at 468. 588 Black v. Barrett Bus. Servs., Inc., No. 1:18-cv-96-CWD, 2019 WL 2250263 (D. Idaho May 23, 2019). 589 Id. at *5. 590 Id. (quoting Winther v. City of Portland, 21 F.3d 1119, at *1 (9th Cir. 1994)). 591 Id. at *6. 592 42 U.S.C. § 2000e(b). 593 29 U.S.C. § 203(d). 594 Id. § 203(e)(1). 595 Id. § 203(g). 596 U.S. v. Rosenwasser, 323 U.S. 360, 363 n.3 (1945).
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