©2025 Seyfarth Shaw LLP Developments in Equal Pay Litigation 2025 | 13 Like the factors used to establish a prima facie case, the affirmative defenses allowed by individual state laws can be different from those established by the federal EPA. However, with some exceptions, most of those affirmative defenses would also qualify as an affirmative defense under the federal EPA’s catchall “factor other than sex” defense. Accordingly, this analysis will focus on developments under the federal EPA, while noting significant variations in state law where appropriate. This burden-shifting framework forms the skeleton of all EPA claims. It is important to note, however, that even if an employer meets its burden to establish an affirmative defense to an employee’s prima facie case, the employee still has an opportunity to show that the employer’s stated reason for the wage disparity is merely a pretext for discrimination.39 1. Establishing A Wage Disparity The first and most fundamental element of a plaintiff’s prima facie case is establishing that a wage disparity exists, i.e., that different wages were paid to employees of a different sex for the same work. In a case that involves just one or a handful of plaintiffs, this might only require the identification of one or more alleged “comparator” employees who were paid at a higher rate. This requirement is often not difficult to meet. The “One-Comparator Rule”. Many courts have held that a plaintiff can establish a wage disparity by comparing themselves to just one member of the opposite sex who is paid more, even where the plaintiff is better paid then other comparable employees of the opposite sex.40 Other courts have pointed to such situations as tending to disprove the existence of discrimination if, for example, plaintiff was paid more than other comparators of the opposite sex, or if other members of plaintiff’s sex were paid more than plaintiff and some members of the opposite sex.41 This question, whether an equal pay plaintiff may establish a prima facie case by comparing themselves to just one comparator, seems like a straightforward legal issue. But it has given rise to many conflicting decisions among different courts and different circuits. In 2023, two circuit courts had an opportunity to resolve this issue in their jurisdictions. Both declined to do so. On March 29, 2023, the Eighth Circuit affirmed the district court’s decision in O’Reilly v. Daugherty Systems, Inc.,42 but sidestepped the “one comparator” question.43 The plaintiff in that case had identified at least one male comparator who was paid more than her.44 Relying on the sheer weight of authority, 39 But see Baker v. Upson Reg’l Med. Ctr., No. 22-11381, 2024 WL 1003534 (11th Cir. Mar. 8, 2024) (holding that the Eleventh Circuit applies a two-part analysis in EPA litigation, which does not include a “pretext” analysis). 40 See, e.g., Gutierrez v. City of Converse, No. 5:17-cv-01233-JKP, 2020 WL 156707, at *3 (W.D. Tex. Jan. 10, 2020) (acknowledging that the evidence showed that a female firefighter was better paid than all of her male peers with the exception of one, but holding: “[i]t is enough for the plaintiff to show that there is discrimination in pay with respect to one employee of the opposite sex”) (quoting Lenihan v. Boeing Co., 994 F. Supp. 776, 799 (S.D. Tex. 1998)); Allen v. Staples, Inc., 84 Cal. App. 5th 188, 194-95 (2022) (holding that plaintiff had established prima facie case by pointing to one comparator, even though employer showed that females in plaintiff’s position were paid more than males on average, and that some males were paid less than plaintiff: “Authorities under the federal EPA have held that a plaintiff claiming gender-based pay disparity may establish a prima facie case by showing that she was paid less in salary than a single male comparator”). 41 See, e.g., Davis v. Inmar, Inc., No. 21-cv-03779 SBA, 2022 WL 3722122 (N.D. Cal. Aug. 29, 2022) (granting motion to dismiss equal pay claim because complaint alleged only one male comparator was paid more than plaintiff, without alleging facts that would justify that comparison: “the Complaint compares Davis to a single male employee, without alleging facts to support such a limited comparison”); Jones v. Jefferson City Pub. Sch., No. 2:18-cv-4054, 2019 WL 1118557, at *2 (W.D. Mo. Mar. 11, 2019) (holding that plaintiff’s admission that both male and female teachers were paid more than him was fatal to his claim because “if sex-based discrimination is not the reason for disparity in pay, the disparity cannot form the basis of a claim under the Equal Pay Act”). 42 O’Reilly v. Daugherty Sys., Inc., No. 4:18-cv-01283 SRC, 2021 WL 4504426 (E.D. Mo. Sept. 30, 2021). 43 O’Reilly v. Daugherty Sys., Inc., 63 F.4th 1193 (8th Cir. 2023). 44 O’Reilly, 2021 WL 4504426, at *4. The lower court first took note of apparently inconsistent decisions by the Eighth Circuit on this point. In Hutchins v. Int'l Bhd. of Teamsters, 177 F.3d 1076 (8th Cir. 1999), the Eighth Circuit upheld a decision that found a prima facie case where the evidence showed that plaintiff was paid less than twelve male employees, but which also showed that plaintiff was paid more than eight comparable males, and that five other comparable females were paid higher salaries than their male peers. O’Reilly, 2021 WL 4504426, at *5; see also Euerle-Wehle v. United Parcel Serv., Inc., 181 F.3d 898, 901 (8th Cir. 1999). On
RkJQdWJsaXNoZXIy OTkwMTQ4