©2025 Seyfarth Shaw LLP Developments in Equal Pay Litigation 2025 | 21 as their positions had different job titles, different job responsibilities, and were in different divisions of the OAG.”110 Second, and more fundamentally, the court held that the plaintiff could not base an EPA pay discrimination claim on what was, in essence, a Title VII promotion discrimination claim. “An employer's failure to promote and discriminatory pay practices are discrete actions that must be challenged and asserted separately.”111 Because the promotion decision happened outside the statute of limitations for her Title VII claim, she could not bring that claim. Nor could she rely on the continuing violation doctrine to revive it, because that doctrine does not extend the statute of limitations for discrete discriminatory acts, such as a failure to promote. “Simply put, [plaintiff] cannot disguise an untimely failure-to-promote claim as a pay discrimination claim merely because she was paid less than she would have made had she been promoted.”112 Even if an equal pay plaintiff could have had a viable equal pay claim at one time, intervening promotions can vitiate that claim unless the plaintiff can show that their pay remained below that of their comparable peers in the new positions they were promoted into. For example, in Jeffords v. Navex Global, Inc.,113 a Senior Vice President based her pay discrimination claim on a spreadsheet that she inadvertently received in 2013, when she was still a Vice President. The spreadsheet contained salary information for all of her employer’s employees. She believed that spreadsheet showed a pay disparity between herself and similarly situated male colleagues.114 She relied upon that spreadsheet as proof of her equal pay claim. The court held that her claim was time-barred because it accrued when she received the spreadsheet seven years earlier: “It was at this time—more than seven years before her termination—that [plaintiff] knew or had reason to know of the alleged pay disparity.”115 Moreover, the court held that even if every paycheck since that date had triggered a new statute of limitations—under the continuing violation doctrine—that could not save plaintiff’s claims because she had been promoted several times since that date, and “[t]here is no evidence in the record that [plaintiff] was paid less than her male colleagues for the same work in any of her subsequent roles at [employer].”116 Statistics and Other Methods of Proof. Litigants may sometimes turn to statistics to buttress their case, using them to establish that a wage disparity is due to discrimination, even for single plaintiff cases. But unless the meaning of such statistics is clear, courts may still fall back on a simple comparison of salaries among plaintiffs and their comparators. For example, in Atta v. Cisco Systems, Inc.,117 a female marketing department employee alleged she was paid less than male employees in the same pay grade who worked in the same department. She wanted the court to infer discrimination from the fact that her male workers’ compensation ratios, on average, exceeded the women’s ratios. The court was unwilling to draw that conclusion from the statistics she presented. Among other things, the court held that “statistics may be a piece of circumstantial proof bolstering an inference of discrimination, but to be useful, the statistics must clearly show actual differences in treatment, and their usefulness therefore ‘depends on all of the surrounding facts and circumstances.’”118 The court then compared plaintiff’s salary with those of her male comparators and found that she had been paid more than two male comparators in her first year in their pay grade, and that other differences in pay were explained by other non-discriminatory factors of the employer’s compensation system.119 Proving Wage Disparities in Class and Collective Actions. In class and collective actions, the identification of a wage disparity is even more complex. The use of statistics to show disparities in pay across employee groups is often critical in such cases. For example, in Spencer v. Virginia State 110 Id. at *10. 111 Id. at *11. 112 Id. 113 Jeffords v. Navex Global, Inc., No. 3:21-cv-00414-SB, 2023 WL 2986722 (D. Ore. Feb. 17, 2023). 114 Id. at *1. 115 Id. at *10. 116 Id. 117 Atta v. Cisco Sys., Inc., No. 1:18-cv-1558-CC-JKL, 2020 WL 7384689 (N.D. Ga. Aug. 3, 2020). 118 Id. at *26 (quoting Int'l Bhd. of Teamsters v. U.S., 431 U.S. 324, 340 (1977)). 119 Id.
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