©2025 Seyfarth Shaw LLP Developments in Equal Pay Litigation 2025 | 51 would be immune from the EPA for no other reason than that the policy was followed, even if no factor other than sex could explain its discriminatory effect.”356 Relying on tools such as third-party job grading software, even if arguably gender-neutral, may be insufficient to support a pay disparity depending on how they are implemented and the surrounding circumstances. In Moazzaz v. Met Life, Inc.,357 the court analyzed the use of a third-party job grading software tool that determined the grade for the role. The employer argued that the pay disparity between the plaintiff and the alleged comparator was justified by the comparator’s higher job grade, and his higher job grade was justified by his greater experience.358 The employee successfully established pretext, however, by showing: (1) the comparator’s job grade could not have been influenced by his experience as the job was graded a year prior to the comparator taking the role; (2) under the employer’s policies, the third-party job grading was to be based only the job’s responsibilities, and not on the factors unique to the individual who holds the job; and (3) the plaintiff presented evidence that the individual HR employees had substantial discretion over job grading, and that discretion could allow gender bias to influence job grading. 359 While arguments based on corporate hierarchy or classification systems can be successful, it is critical for the employer to adhere rigorously to its system. At least one court recently held that an employer’s honest mistake in classifying its employees will not serve as a defense to an equal pay claim.360 Moreover, the 356 Id. at *17. 357 19-CV-10531 (JPO), 2024 WL 1312995, at *5 (S.D.N.Y. Mar. 26, 2024). 360 In Johnson v. Canyon Cnty., Idaho, No. 1:19-cv-364-BLW, 2020 WL 5077731 (D. Idaho Aug. 27, 2020), four female Licensed Practical Nurses alleged they were paid less than their male counterparts for equal work. The employer argued that the salary differential was the result of a mistake, whereby one of plaintiffs’ male comparators was assigned a code for a Registered Nurse when he was hired and was paid more as a result of that mistake. The court held that the “factor other than sex” affirmative defense had to be read in light of the other three affirmative defenses, which all relate to job experience, job qualifications, and job performance, and were therefore exceptions that were job-related. But the employer’s mistake could not be considered job-related: “Blind adherence to a classification number is actually the opposite of a job-related factor because it is blind to anything akin to job experience, qualifications, or performance.” Id. at *3. See also Spiewak v. Wyndham Destinations, Inc., No. 20-cv-13643 (KMWEAP), 2023 WL 869309, at *5-6 (D.N.J. Jan. 26, 2023) (holding that employer that paid plaintiff on an hourly basis, when it had paid her predecessor in the same position on a salary basis, had failed to establish its affirmative defense, even though the employer argued that plaintiff’s predecessor’s salary was a mistake: “Succinctly stated, while Defendant contends that it erroneously paid [predecessor comparator] a salary, testimony revealed that neither [supervisor nor HR manager] could confirm when the ‘erroneous’ salary payments began or ended. Moreover, while Defendant claims the salary issue was corrected, the cited record evidence, [HR manager’s] testimony, contradicts this contention”). 360 In Johnson v. Canyon Cnty., Idaho, No. 1:19-cv-364-BLW, 2020 WL 5077731 (D. Idaho Aug. 27, 2020), four female Licensed Practical Nurses alleged they were paid less than their male counterparts for equal work. The employer argued that the salary differential was the result of a mistake, whereby one of plaintiffs’ male comparators was assigned a code for a Registered Nurse when he was hired and was paid more as a result of that mistake. The court held that the “factor other than sex” affirmative defense had to be read in light of the other three affirmative defenses, which all relate to job experience, job qualifications, and job performance, and were therefore exceptions that were job-related. But the employer’s mistake could not be considered job-related: “Blind adherence to a classification number is actually the opposite of a job-related factor because it is blind to anything akin to job experience, qualifications, or performance.” Id. at *3. See also Spiewak v. Wyndham Destinations, Inc., No. 20-cv-13643 (KMWEAP), 2023 WL 869309, at *5-6 (D.N.J. Jan. 26, 2023) (holding that employer that paid plaintiff on an hourly basis, when it had paid her predecessor in the same position on a salary basis, had failed to establish its affirmative defense, even though the employer argued that plaintiff’s predecessor’s salary was a mistake: “Succinctly stated, while Defendant contends that it erroneously paid [predecessor comparator] a salary, testimony revealed that neither [supervisor nor HR manager] could confirm when the ‘erroneous’ salary payments began or ended. Moreover, while Defendant claims the salary issue was corrected, the cited record evidence, [HR manager’s] testimony, contradicts this contention”). 360 In Johnson v. Canyon Cnty., Idaho, No. 1:19-cv-364-BLW, 2020 WL 5077731 (D. Idaho Aug. 27, 2020), four female Licensed Practical Nurses alleged they were paid less than their male counterparts for equal work. The employer argued that the salary differential was the result of a mistake, whereby one of plaintiffs’ male comparators was assigned a code for a Registered Nurse when he was hired and was paid more as a result of that mistake. The court held that the “factor other than sex” affirmative defense had to be read in light of the other three affirmative defenses, which all relate to job experience, job qualifications, and job performance, and were therefore exceptions that were job-related. But the employer’s mistake could not be considered job-related: “Blind adherence to a classification number is actually the opposite of a job-related factor because it is blind to anything akin to job experience, qualifications, or performance.” Id. at *3. See also Spiewak v. Wyndham Destinations, Inc., No. 20-cv-13643 (KMWEAP), 2023 WL 869309, at *5-6 (D.N.J. Jan. 26, 2023) (holding that employer that paid plaintiff on an hourly basis, when it had paid her predecessor in the same position on a salary basis, had failed to establish its affirmative defense, even though the employer argued that plaintiff’s predecessor’s salary was a mistake: “Succinctly stated, while Defendant contends that it erroneously paid [predecessor comparator] a salary, testimony revealed that neither [supervisor nor HR manager] could confirm when the ‘erroneous’
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