80 | Developments in Equal Pay Litigation ©2024 Seyfarth Shaw LLP The matter was appealed to the Eleventh Circuit, and the EEOC filed an amicus brief attempting to clarify the burden shifting framework under the EPA.660 According to the EEOC, the EPA’s framework is as follows: (1) the plaintiff must establish a prima facie case; (2) the defendant must then prove an affirmative defense that, in fact, caused the difference in pay in order to avoid liability. According to the EEOC, under the EPA, the burden never shifts back to the plaintiff to prove pretext.661 Therefore, for the university to prevail, it would need to submit evidence from which a reasonable factfinder could conclude that the proffered reasons do in fact explain the wage disparity (not simply that they could explain the disparity, which would be sufficient under Title VII’s McDonnell Douglas framework). The EEOC points out that this burden is even higher at the summary judgment stage because an employer must prove at least one affirmative defense so clearly that no rational jury could find to the contrary.662 Additionally, under the EPA’s framework, the burden does not shift to the plaintiff to prove pretext.663 According to the EEOC, the District Court’s decision to the contrary goes against Eleventh Circuit precedent, and the majority of other circuits also reject the pretext step for EPA claims.664 In reality, this issue has been hotly disputed among the federal courts, and it is no surprise that the EEOC would want to weigh in to steer the law in an as plaintiff-friendly direction as possible.665 660 See Br. of the EEOC as Amicus Curiae in Support of Appellant and in Favor of Reversal, Williams v. Ala. State Univ., No. 2312692 (filed Sept. 29, 2023). 661 Id. at 10-13. 662 Id. at 14. 663 Id. at 16-19. 664 Id. 665 See, e.g., Wilder v. Stephen F. Austin State Univ., 552 F. Supp. 3d 639, 654 (E.D. Tex. 2021) (Noting the differences in proving pretext under the McDonnell Douglas framework versus the framework applied under the EPA, the court held that, under the EPA,
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