©2025 Seyfarth Shaw LLP Developments in Equal Pay Litigation 2025 | 53 was a finite amount of money allocated to such raises, and they were supposed to be granted on the basis of seniority and in consideration of the impact such awards may have on internal equity.371 This resulted in the plaintiff being denied many such awards, even though it meant her salary was falling below other, newer hires.372 Nevertheless the court found in favor of the employer, holding that it had met its burden to show that broadbanding was required in order to meet its recruitment needs: “Even if the court were to engage in second-guessing with the benefit of hindsight, [employer’s] demonstrated success in recruiting and filling the open WMPSS positions with exceptionally qualified recruits would appear to have vindicated [employer’s] judgment.”373 Moreover, the court found that salary compression that resulted from broadbanding was not inherently discriminatory because senior male colleagues were impacted similarly or worse. “On this record, had [plaintiff] been a man and everything else remained the same, neither [plaintiff’s] nor the new hires’ starting salaries would have been different.”374 Economic concerns, such as competitive pressures to attract top talent, as well as financial difficulties and corporate cutbacks, are often relied upon as factors other than sex. For example, in Williams v. Alabama State University,375 the former Athletic Director for a university alleged that her former employer violated the federal and Alabama EPA when it hired her successor, a male, at a higher salary than she had received when she served in that role.376 The employer had listed the position with the same salary that plaintiff had been paid, but also mentioned that it was “negotiable.” The new Athletic Director demanded a higher salary plus incentives; the employer relented on the salary request and some, but not all, of the incentive requests.377 The employer argued that the incoming Athletic Director’s more advanced education (a Ph.D.) and experience justified the higher salary; plaintiff argued that those considerations were irrelevant to the position. The court sided with the employer, holding that “[u]nder the EPA, education and experience are ‘acceptable factors other than sex’ if they are not used as ‘pretext for differentiation because of gender.’”378 While plaintiff was free to challenge the employer’s rationale for that decision when arguing pretext, the employer’s burden was only to “demonstrate by the preponderance of the evidence that ‘sex provided no basis for the wage differential.’”379 Because the employer had presented evidence of objective and legitimate factors other than sex justifying the pay differential, it had met its burden to establish a “factor other than sex” defense. Plaintiff attempted to establish pretext, arguing that the incoming Athletic Director’s education and work experience were not relevant to the position. But the court held that her opinion was irrelevant because it was clear that her employer had, in fact, relied upon those factors in setting starting salaries: “it is immaterial whether [plaintiff] agrees with the Defendants’ subjective business decision to consider [incoming Athletic Director’s] Ph.D. and work experience in setting his salary. No evidence rebuts ‘the fact’ that they considered [his] higher degree and greater relevant work experience than [plaintiff’s].”380 Similarly, in Nazinitsky v. Integris Baptist Medical Center, Inc.,381 the court found that the employer’s practice of paying physicians based on the market value range of their medical specialty was a legitimate factor other than sex.382 Although that alone did not account for the entire salary difference—because each physician is compensated within a range associated with their medical specialty—that, coupled with 371 Id. at *10. 372 Id. 373 Id. at *9. 374 Id. at *10. 375 Williams v. Ala. State Univ., No. 2:22-cv-48-ECM, 2023 WL 4632386 (M.D. Ala. July 19, 2023). 376 Id. at *2-3. 377 Id. at *3. 378 Id. at *4 (quoting Irby v. Bittick, 44 F.3d 949, 956 (11th Cir. 1995)). 379 Id. at *5 (quoting Steger v. Gen. Elec. Co., 318 F.3d 1066, 1078 (11th Cir. 2003)). 380 Id. at *7. 381 Nazinitsky v. Integris Baptist Med. Ctr., Inc., No. 19-cv-043-R, 2020 WL 1957914 (W.D. Okla. Apr. 23, 2020). The court assumed without deciding that she had met her burden to establish that she performed work that was substantially equal to her alleged comparators. Id. at *4. It then considered the employer’s affirmative defense that her salary had been based on two factors other than sex: (1) a bona fide, gender-neutral pay classification system based on marketplace value; and (2) employee experience. Id. 382 Id.
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